Question Three: On Testament

490. Testament is an essentially revocable act by which the testator disposes of his goods, or of a certain part of them, for the time following his death¹ (a. 895). It is said:

¹ Roman law and many modern laws still distinguish between testament, codicil, and legacy. Testament is an act or disposition of last will by which someone appoints an heir of goods. Codicil is a declaration of last will by which, without institution of an heir, one decrees something concerning succession, especially a secondary disposition, an explanatory or modifying addition directly adjoined to a testament already made. Legacy is a last disposition by which the testator directly leaves something from the goods of the whole inheritance to another, to be handed over or furnished to him by the heir. But in French law (a. 895), generally every disposition concerning one's own goods is called indiscriminately a testament.

1. an act, because strictly it is not a contract: for there is not an agreement between the testator and the legatee, which requires a twofold act, but one act by which the testator alone expresses his will, independently of any acceptance by another, so that the force is from the testator alone;

2. essentially revocable up to death, while donation inter vivos is of itself irrevocable;

3. by which the testator, namely the very person of the testator, and not his delegate; indeed of itself an individual person: for if it were made by several in the same act, the testament would now be void, because joint and mutual testament has been suppressed by present-day law² (a. 968);

² Yet there are exceptions. The German code (a. 2274) and the Swiss (a. 512) permit mutual pacts in an authentic testament; and the Austrian code (a. 602) among spouses alone, just as it also permits parents to make testament for minor children concerning goods which they themselves leave to the children (a. 609); but the Lusitanian code (a. 1589) admits a general substitution of parents into the place of children. Nevertheless mutual pacts of spouses are generally admitted in the matrimonial contract itself.

4. disposes of his goods or of a part of them: for in the present matter the last will of the testator is considered in order to the dominion, use, and administration of his goods;

5. for the time following his death: for a testament does not transfer right and dominion actually, here and now, but only after the death of the testator.

And therefore testament differs from donation: a) the former is an act, the latter is a contract; b) the former is revocable, the latter irrevocable; c) the former does not transfer right and dominion actually but only for the time following death; the latter transfers these actually in the present. And nevertheless testament is deservedly reduced to donation, because it transfers dominion gratuitously, and because by the consent of the legatee it must be accepted while the will of the deceased has not been revoked.

491. Concerning the origin of the right of making testament there has been manifold opinion. Now:

1° It is certain that some hereditary right of itself is founded in nature, namely that by which children, parents, or even those closely joined succeed in the goods of the deceased (unless they have legitimately been excluded by him), because private dominion is necessary not only for individuals, but also for the family and on account of the stability of family goods: "If a son, also an heir," says the Apostle to the Galatians, IV, 7. Whence goods, by destination, already pertain to the family, by which it happens that there already exists a special bond by which there is born a right of occupying the goods of the deceased; otherwise the connection and perpetuity of the family would be endangered.

St. Thomas recognizes this, Contra Gentiles III, 123, and in IV Sent., d. 33, q. 2, a. 1; and at least it must be admitted, because, as Pius XI says in the encyclical Quadragesimo anno: "For always the natural right itself both of possessing goods privately and of transmitting goods by inheritance must remain intact and inviolate, since the state cannot take it away."

2° It is probable that the unlimited right of making testament, or of perfectly disposing of goods after death, is founded in natural law, on account of reasons similar to those for private dominion, of which it seems to be the complement. For the dominion of a private man on the one hand is exclusive and permanent, especially in things made or improved by him; on the other hand, the reason because of which the division of possessions was necessary, namely that there be a sufficient stimulus for labor, and greater care and progress in labor, also holds in some way for the right of disposing concerning goods after death, so that those things may be procured more efficaciously.

But this is not altogether certain, because it does not clearly appear how someone can dispose of his goods after death, or for a time in which he no longer has dominion. Whence some derive this right from human law; nevertheless it is certain that nature at least counsels the right of making testament as most fitting.

3° Yet many things regarding it from natural law alone remain indeterminate and uncertain, especially concerning the manner of exercising that right, and concerning the limits by which it is circumscribed lest it turn to the detriment of society, civil or familial. Whence most certainly there must be recognized in the civil legislator the power of determining that right and establishing its limits, even under penalty of nullity of testaments in the forum of conscience.

492. Conditions required for the value of a testament are determined by civil law. - In law a testament is wont to be distinguished into one in extraordinary external form, and one in ordinary form.

A. A testament in extraordinary form is that which, by reason of privilege, has force even when made without legal forms: thus testaments of soldiers, of those sailing beyond the sea, and in time of plague³ (a. 981-998). But when the necessity ceases, these testaments must within a brief time be clothed with ordinary form.

³ Swiss law also permits this when, on account of the lack of a public official and the impediment of the sick person, ordinary form cannot be observed (a. 506); and similarly Austrian law, admitting a private nuncupative testament before three witnesses simultaneously present (a. 585).

B. Testament in ordinary form is distinguished as threefold: holographic, solemn, and mystic.

1° Holographic (eigenhandig), as the word indicates, is that which has been written entirely by the hand of the testator with notation of the day, month, and year on which it was made, and with the signature of the testator⁴ (a. 970).

⁴ A holographic testament is admitted in French, Belgian, Dutch, Italian, Spanish, Austrian, German, Swiss law, etc.

Whence for its validity three things are essentially required:

a) That it was written entirely by the hand of the testator, with no word excepted. Interlineations added by his own hand do not vitiate the testament; those of another hand vitiate it if they make one body with the testament, as would be certain, for example, from the approval of the testator. Marginal additions are valid, even if they were not signed, if they were written at the same time as the testament itself; but if afterward, and they contain new dispositions, they must be signed with inscription of the day, month, and year. Erasures which are certain to have been made by the hand of the testator, because he approves them or because the testament is found in his possession signed with a seal, only invalidate the deleted dispositions.

b) That the day, month, and year on which the testament was made be rightly designated, at the beginning or end of the document; this is required so that it may be known whether it was written at a time when the testator was capable of making testament, and which of various testaments is valid. But these things must be noted before one's own name is signed, so that the signature of the writer may be the conclusion of the testament; otherwise it would easily be doubtful. But designation of place is not necessary, for a testament can be made anywhere⁵ (a. 999).

⁵ Yet by German law (a. 2231), and Swiss law (a. 505), indication of place is required; conversely, by Austrian law not even indication of date is demanded (a. 578).

c) That the testator append his own name by his own hand⁶ at the end of the document, even by the family name expressed in full letters; nevertheless the first name could suffice if it sufficiently indicated the person, as for example for bishops.

⁶ In English law it can also be signed by another, but under the direction of the testator. But the signature is to be made or acknowledged by the testator before at least two witnesses, simultaneously present, who, before the testator, sign the testament.

That it may obtain its effect, it is rather often required that the testament be exhibited to the tribunal, or deposited with a notary. It is also to be counseled, lest it be taken away or destroyed, that two copies of it be written, of which one is handed to the heir or legatee, the other to the notary.

2° A public or solemn testament (par acte public; plechtig) is that which is made by an authentic or public act by a notary or competent official before witnesses, while the testator orally declares or dictates his last dispositions; whence it is also called nuncupative (C. Germ., a. 2250; mondeling).

The form in diverse regions is diverse. In French law it is received by two notaries before two witnesses; or by one notary before four witnesses; it is dictated by the testator, written by one notary, and signed by that notary, at least two witnesses, and the testator (a. 971-975).

In Belgium, from the law of 16 Dec. 1922 modifying the civil code, two notaries or one notary with two witnesses now suffice; moreover, the conditions required that a solemn testament be valid are: a) that it be dictated by the testator, b) that it be written by one notary just as it was dictated, c) that it be read beforehand to the testator, and indeed before two witnesses if it is received by one notary; d) that mention be made of all these things; e) that it be signed by the testator, and if he cannot do this, that this be expressly declared in the act together with the cause which impeded signing; f) that it also be signed by the witnesses, in the case in which it is received by only one notary; g) the witnesses cannot be legatees, nor their spouses, nor their blood relatives or relatives by marriage (up to the fourth degree inclusively), nor the wife, clerks, or servants of the notary. - Moreover they must be Belgians and adults, and they can be of either sex, yet so that husband and wife are not witnesses together in the same testament (a. 980).

3° A mystic or secret testament (geheim, besloten, verzegeld) is that by which the testator secretly disposes concerning his goods, and which, closed and sealed, he offers to a notary or public official before witnesses.

In French law, it is required that the testator offer it to a notary before six witnesses, declaring this to be his testament, written and signed by his own hand, or written out by another and signed by himself; - of which declaration an authentic act is made, to be signed by all (a. 976-979). In Belgium, by the law of 16 Dec. 1922, this was in some way modified, so that it must be offered to two notaries, or to one notary and two witnesses.

493. Concerning the value of an informal testament, or one lacking legal forms, the principles hold:

1. If the testament regards profane causes, it can be held as valid by the legatee until it is declared null by a judge, because many judge that a testament of this sort is not legally nonexistent but only invalid; in the same way as we said concerning informal donation.

2. Nevertheless the natural heir can petition for the annulment of the testament; - unless he has explicitly promised the testator that he would not attack the testament, and the testator, relying on this promise, has abstained from changing the testament: for then by attacking it he would deprive the legatee by unjust fraud of the right which he otherwise would legitimately have obtained.

3. But the legatee can use no fraud to deceive the judge, for example, by supplying the designation of day or year omitted, or by appending the name of the testator who was impeded by death from signing; but if he has used fraud or another unjust means, he is held to restitution toward the heirs who have the right of prosecuting the annulment of the testament.

4. But if the testament regards pious causes, it is certainly valid in conscience from can. 1513, § 1: "In last wills for the good of the Church, the solemnities of civil law are to be observed if it can be done; if these have been omitted, the heirs are to be admonished to fulfill the will of the testator" (cf. can. 2348).

And although it is not explicitly said: let them be admonished concerning the obligation, nevertheless this is sufficiently indicated implicitly, because admonition is not made concerning counsels but concerning precepts; this is now altogether certain from the authentic declaration of the interpretation commission, 17 Feb. 1930. This declaration besides confirms traditional Roman jurisprudence (Alex. III, Decr. l. III, tit. 26, c. 2; S. Poen. 23 Jun. 1844 and 19 Jan. 1901).

If pious legacies seem too onerous to the relatives of the deceased, they can approach the Holy See to obtain reduction or composition; but in a case of necessity, or if the testator has thus disposed, the Ordinary also is competent (can. 1517).

494. Rights and burdens of legatees. - In law there are wont to be distinguished heir, legatee, and testamentary executor.

An heir is he who naturally or legally succeeds to the goods of the deceased, even without a testament; whence he is called heir ab intestato (bij versterf). A legatee is he who receives from the goods of the deceased by force of legacy or testament. A testamentary executor is the mandatary whose office is to watch faithfully over the execution of the testament. Nevertheless, in present-day law, he also is called heir who succeeds from a testament, but by a universal title, not a particular legatee: thus the Italian Code (a. 760), German (a. 2087), Spanish (a. 668); but in French (a. 1002), Belgian, and Dutch law, no distinction is made between testamentary heirs and legatees, and all are called legatees. And therefore there are distinguished: heirs or universal legatees, - heirs or legatees by universal title, - particular legatees, - testamentary executors.

The dispositions of French and Belgian law follow:

A. An heir or universal legatee (eenige erfgenaam of algemeene legataris) is said to be he to whom the universality of the goods of the deceased is given. The testator can select one universal legatee, or several jointly; but if there are several, it is necessary that no part be assigned among them. To the universal legatee: a) there is the right, if necessary heirs are lacking, of obtaining at once dominion of the goods of the deceased and possession (la saisine; bezitrecht); - but if necessary heirs are present, these obtain possession, and the legatee must petition from them the handing over of the goods (la délivrance; de uitlevering of overhandiging). b) But the office is: if he alone accepts the inheritance, of paying all legacies and debts, even beyond the powers of the inheritance, unless he has accepted the inheritance under the benefit of inventory; but if he concurs with a necessary heir, of paying all legacies, but debts only proportionately to the part of the inheritance (a. 1003-1009).

B. Legatees by universal title are those to whom the testator gives an aliquot part of his goods, for example, a third or fourth part, or all movables or immovables. Now a) they do not have a right to possession, but must petition the goods given to them from the necessary heirs or from the universal legatee; b) but the office is theirs of paying debts and particular legacies in proportion to the part of the inheritance which they receive (a. 1010-1013).

C. Legatees by particular title are those to whom the testator gives a determined thing: a) they have a right to the goods bequeathed to them at once after the death of the testator, but generally cannot enter into possession or exact fruits except from the day on which they petitioned for the handing over of the goods, or this was voluntarily conceded by the heirs; b) but they do not have the office of paying debts and burdens of succession, unless the testator explicitly declared this, or the goods given to them have been burdened with mortgages (a. 1014-1024).

D. A testamentary executor (uitvoerder) is a mandatary selected by the testator himself to this end, that he faithfully watch over the execution of the testamentary dispositions. The testator can also designate several; but if he has designated none, the executor will be the heir. The rights and offices of the executor, whose office does not pass to heirs, depend partly on the intention of the testator, partly on the disposition of law: this demands a) that he take care that seals be applied, if among the heirs there are minors, interdicted persons, or absent persons; - that an inventory be made, the nearest heir being present or duly called; - that movable things be sold if money for paying legacies is lacking; - and that the testament be executed; - b) but the expenses made by the executor in fulfilling his office must be paid from the things of the inheritance (a. 1031-1034).

It is evident that legatees of diverse species can concur at the same time.

495. A testament can cease in three ways: by revocation, lapse, and rescission.

1. By revocation (herroeping): for a testament by its nature is revocable, and man can change his will up to death.⁷ But a testament is revoked (a. 1035-1038):

⁷ This does not hold, however, concerning mutual pacts, where they are admitted: these cannot be revoked except by mutual consent.

A. Explicitly, by a new testament in which the preceding one is formally rescinded, either entirely or as to certain dispositions, or by an act before a notary, by which a change of will is declared;

B. Implicitly or tacitly: a) by making a new testament in which nothing is said about the former, but dispositions are contained contrary to those which were had in it (tegenstrijdige schikking);

b) by any alienation whatever of the thing bequeathed (vervreemding), even if the alienation is null or the testator afterward has recovered the thing: for alienation clearly signifies a change of mind;

c) by tearing, obliteration, or destruction of the testament (verscheuring of vernietiging), carried out by the testator himself or at his command.

If the testator under vow or under the faith of an oath has proposed or promised to another accepting that he would not revoke the testament, and nevertheless without legitimate reason he revokes it, he sins against religion; but not against justice, because a vow or oath cannot change the nature of a testament, which is essentially revocable. And therefore in this case revocation has force; all the more because a simple promise of not revoking is invalid from a. 1130.

2. By lapse (verval), which is verified when dispositions valid from the beginning cannot obtain their effect because of a supervening impediment (a. 1039-1043):

a) If the legatee dies before the testator: for testamentary donation is made with a view to the person, and therefore does not pass to heirs.

b) If the legatee dies before the condition of uncertain event on which the legacy depended is fulfilled.

c) If the thing bequeathed has totally perished while the testator was living; or after his death, but without any fault of the heir: for then the thing perishes to its owner.

d) If the legatee renounces the legacy after the death of the testator, or becomes unable to receive it.

3. By rescission or annulment (verbreking), which heirs can petition for a threefold cause (a. 1046-1047):

a) If the legatee does not execute the conditions imposed by the testator (a. 954).

b) On account of grave ingratitude of the legatee toward the testator, as if he has plotted against the life of the testator, has been guilty of cruelties, delict, or grave injury against him, or has inflicted grave injury on his memory (a. 955, 1047, and 727 sq.).

c) If there is some cause of nullity from lack of legal forms or incapacity of the parties (a. 893).