As of 1960, forty-two American states warranted nuncupative wills. (271) Since then, however, the number has dwindled steadily.
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.
would make [the estates of the dead] an easy prey for the dishonest and unscrupulous..., (297) This argument mimics the indictment leveled against nuncupative wills. (298) Yet, it is a striking fact that the trend lines of the two doctrines have progressed in opposite directions.
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." (305) With equal vehemence, evidence scholars have condemned the dead man's statute, making arguments on the contracts side that seem directly responsive to criticism on the inheritance side:
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." (308) Because the alternative forms of transfer are categorically distinct, the contradiction has gone largely unnoticed.
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. (339) In order fully to glean the benefits of situational consolidation, lawmakers would have to incorporate a unified situational definition into each category and state that rulings within one category become precedents applicable to all--a situational framework in all but name.