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In re Estate of Alexander, 250 S.W.3d 461 (Tex. App.—Waco 2008, pet. denied).

Wills

Nuncupative Wills

After the probate court opened an intestate administration of Decedent’s estate, Beneficiary alleged that Decedent made a nuncupative will.  Both the probate and appellate courts held that Decedent did not speak the alleged testamentary words while in his “last sickness” as required by Probate Code § 65.  The court explained that the courts have consistently interpreted this statutory phrase as meaning that the testator must be “in extremis,” that is, on one’s deathbed, to make a valid nuncupative will.  The facts showed that although Decedent was hospitalized when he spoke the testamentary words, he was later released and did not die until over two weeks later.  Merely suffering from a chronic illness at the time of speaking the words is not enough.

Note:  As of September 1, 2007, Texans may no longer make nuncupative wills.  Acts 2007, 80^th Leg., ch. 1170, § 5.05 (repealing Probate Code §§ 64 & 65).

Moral:  Suffering from a chronic condition at the time of speaking testamentary words is insufficient to satisfy the “last sickness” requirement of a nuncupative will unless the decedent spoke the words at the very last stage of the illness.

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