Legislative hostility to nuncupative wills has stemmed both from sweeping trends and salient episodes.
Those few modem commentators who have paused to reflect on nuncupative wills have opposed giving effect to them, irrespective of the circumstances.
Yet, the setting in which nuncupative wills are made itself offers some assurance of simplicity.
This argument mimics the indictment leveled against nuncupative wills.
Today, only nine states allow witnessed nuncupative wills for any testator near death, typically with a variety of other restrictions, (299) whereas thirty-two states now allow a surviving party to prove even an unwitnessed contract formed near death, and without any additional safeguards.
Earlier, we noted academic criticism of nuncupative wills as inviting "fraud and perjury.
Inheritance scholars have deplored nuncupative wills as "obsolescent and outmoded" (307) at the same time as evidence scholars have condemned the dead man's statute as a "relic.
If created by oral declaration, such a living trust becomes the functional equivalent of a nuncupative will--but without requiring multiple witnesses and without confining the declaration to the vicinity of death.
Without reconfiguring the categories, each one would remain technically isolated, so that rulings on, say, the meaning of a "near death" transfer within the law of gifts causa mortis would fail to pertain to nuncupative wills.
For an early criticism of the requirements for nuncupative wills set out in the English statute of frauds, see Bentham, supra note 66, at 545-47.
97) It may seem strange that Alice did not mention Henry in her will, but he was already being provided for, and nuncupative
wills such as this one do not include much extraneous information.