Question V: In what ways a testament is revocable

Not unfittingly is the will of a man called Ambulatory until death leg. 4. ff. de adimend. leg. since it often uses to walk and return by the same way, as is clearly proved in the revocations of testaments, on whose occasion this was said.

And first indeed the laws concede to the testator, until his death, to declare his own testament void, unless he be a Religious who made his testament before the solemn emission of his vows; the reason of each is, because until death the testator commonly has free dominion over his own goods; not so if he be a professed Religious: And this stands thus even if the testator should have sworn or promised that the testament of his last will would be irrevocable: because what nature can do can always be retracted, and cannot be made irrevocable by any extrinsic addition: Yet understand this of valid revocation; for a testament confirmed by an oath will not be able licitly to be revoked, since thus God would be brought in as witness to falsehood: Vasquez, however, says that in the forum of conscience a second testament would be not only illicit but also invalid, if the first had earlier been strengthened by oath; the opposite, however, is the more common view, for many things are done validly that are not done licitly.

Nor does it stand in the way that the Oath is accessory to the testament, as to a principal, whose nature, licitly revocable of itself, it ought to follow. For this is true, when the conditions are not expressly excluded; but one swearing that he will not revoke is held to exclude all revocatory conditions, since he intends to expel that celebrated condition: unless it be revoked. Let the following be read on this matter, Vasquez opusc. de testam. cap. 2. Couar. 2. parte rubr. de testam. Antonius Gomez in 3. l. Tauri, Sylvester verbo testamentum 1. §. 12. With Bonacina de contract. disp. 3. quaest. 17. puncto 6. who adds that any form of words by which it is established that the testator earlier held his testament void suffices; nor is it necessary that he institute anew, even if he have used only a verbal revocation, although this is true only of royal law, as Vasquez, to be cited, has it.

Second, a testament is revoked by the breaking of the writing, of the seal, or of another necessary solemnity: but if some part be erased or cancelled with interlineations, the remainder of the testament is valid; and only that part can be called into doubt. So it is gathered ex leg. ad testam, §. si signa, ff. de testamentis, et leg. nostram, C. de testam. These, however, are modified, for if the illicit manner be proved in which such breaking or cancellation was made, or if the tabellion teach that the breaking and cancellation were made before his sign and do no harm, the testament is not invalidated, as is said in leg. 1. §. 1. ff. de iis, quae in testam. delentur. Likewise if there be two writings, of which only one is broken; the other still subsists; because although they are one in the thing, they are nevertheless two in proof; which Vasquez nevertheless so limits, that both writings must be equally principal; for if one be a transcript and transumpt held by the testator, although the Original remained with the Tabellion; this does not help, if the former be cut apart; so teaches Paulus Castr. in leg. nostram, C. de testam. quaest. ult. It must nevertheless be seen whether it was broken by the will of the testator himself, or against his pleasure.

Third, the first testament is invalidated by the making of a second, which is solemn and according to the disposition of law; which is true to that point, even if it were made before the Prince himself; who cannot by simple assistance take away the liberty of testating, which follows the dominion of goods until death; truly, if by special mandate he should declare such a testament irrevocable, such a mandate would have to be stood by; for as the laws can prohibit, for a just cause, the revocability of testaments, so also can the Prince.

Fourth, the first testament, though valid, can be revoked by a second less solemn one, provided it be completed with five witnesses, so long as those coming as heirs ab intestato be instituted in it: but that this may stand, three conditions are required. The first, that in the first testament some extraneous heir be named, for if one or more coming ab intestato were there, the testament still subsists. The second condition is, that those coming ab intestato be nearer heirs. The third is, that all those nearer heirs, coming ab intestato, be of the first grade, nor does any one of them alone suffice: which conditions are only of the common law; but by royal law it is otherwise determined, at least in nuncupative testaments; which are always equally solemn with the first ones, since they must have five, or at least three witnesses with the tabellion; so Vasquez loco citato.