Article III: On Testaments and Last Wills

Because priests themselves are not rarely asked about testaments and last wills, and errors are frequently committed which bring no slight damages to pious causes and to domestic peace, it is necessary that the moral theologian possess certain, at least elementary, notions about the present-day sanctions of laws concerning testaments and last wills.

I. Notion of a Testament. 1. Almost everywhere today, a testament is a juridical, solemn act, essentially revocable until death, by which someone attests what he wishes to be done after his death concerning his patrimony, whether the whole of it, or a part of it, or certain of his goods. As an act, not a contract, it receives force from the will of the testator alone; as solemn, it must be clothed with certain legitimate forms in order to be valid.

In Roman law the direct institution of an heir was essential. Under the name of codicil came an act by which someone established that certain things concerning his goods were to be carried out after death, without the institution of an heir. Often it was, as it were, a supplement of a testament. A trace of that distinction still occurs in the Austrian Code, which, § 553, calls a testament a declaration of last will by which an heir is instituted, while a declaration of last will without the institution of an heir is called a codicil. In the Brazilian Code, under the name of codicil comes a private writing by which secondary last wills are signified. In English law, a codicil is a writing in which changes of a testament are contained. The Dutch Code, art. 922, in its definition of a testament does not even mention goods: "A testament or last will is an act by which someone declares, in a revocable manner, what he orders to be done after death." In English law, no disposition of goods is necessary for the notion of a testament. A testament, Will, is a legitimate declaration concerning posthumous intentions.

2. A testament is everywhere a personal act: it cannot be made for someone by another. And certainly such substitution, if admitted indiscriminately, would often deceive the mind and will of him whose patrimony is at issue. Nevertheless, some Codes allow that parents make a testament for children who have not yet reached a certain age or who are mentally incapable. Such substitution, which Roman law had already admitted, is called pupillary substitution. It is admitted by the Portuguese Code, art. 1859 and 1861; Mexican, 3443 and 3444; Austrian, § 609, for the goods which the parents leave to the children.

3. In most Codes the individual testators are required to make separate testaments, and it is denied that the same testament can be conjointly made by two or more. Also rejected are dispositions which are made under the condition that the heir or legatee in turn should write the testator as heir or legatee in his own testament. Sometimes, however, joint testaments of spouses are permitted, as by the Austrian Code, § 583. More often in nuptial pacts, for example in Italian and French law, it is permitted that future spouses mutually leave to one another a part of the inheritance.

II. Form of a Testament. 1. Everywhere the ordinary form and the extraordinary form are distinguished, which latter is permitted only in certain circumstances. Those extraordinary circumstances are had in military testaments, in testaments of those navigating, in testaments in time of plague. There is also a Code, for example the Swiss, art. 506, which permits a special form when, on account of the absence of a public official and the impediment of the sick person, the ordinary form cannot be observed. But what must be well noted is that these testaments, when the necessity has ceased, must within a brief time be clothed with the ordinary form. It will be enough for us to speak briefly about the ordinary forms, and especially about the private form, since the official is solicitous for the right public form.

Almost everywhere there is had a private testament and an authentic testament, which can be public or secret, unless you prefer to say that the secret testament is of a mixed form. Not rarely, however, the form of a private testament is permitted only to those greater in age. Certain Codes admit a double form, public and secret, even for a private testament.

2. On the Form of a Private Testament. Generally, yet not universally, it is required that it be holographic. But the conditions which the holographic testament itself must satisfy vary accidentally.

In the Italian Code, 775, and the French, 970, it is required and suffices that it be written entirely by the testator's own hand, with a date indicating the day, month, and year, and therefore not necessarily the place, and signed by the testator. A signature made in the usual manner, even if it has something peculiar, as, for example, among bishops, plainly suffices. The signature is to be made at the end, or after the date. This is expressly required by the Italian Code and is safer in French law. Nothing else is required. Therefore no condition either of paper or of ink is required: even if you should write with chalk on a wall, that will suffice. - In Spanish law, 688, the holograph must moreover be written on stamped paper (bullata, timbre) with the stamp bearing the year in which the testament is made. And after the death of the testator, it must be presented within five years to the judge of first instance, under the sanction of nullity. Moreover, the depositary of the holographic testament must present the testament to the judge within ten days; otherwise he will furnish damages (art. 690). - In the Dutch Code it must moreover be deposited with a notary, who receives the testament before two witnesses; and it has its date from the day of deposit (980). By a private holographic writing with a date, one can only designate the executor of the testament, make provision concerning one's funeral, and bequeath clothes (982). - For the Austrian Code it is enough that the holographic testament be entirely written and signed by the testator: the indication of the date and place is not essential (§ 578). - The same obtains in the Canadian Code Q., 850-854. - In the Swiss Code the holograph must be entirely written by the testator, indicate the place, year, month, and day, and be signed (§ 505, Civil Code). - In the German Code, adults can make a holographic testament with indication of place and day (2231). - In the Brazilian Code, a private testament, besides being written and signed by the testator, must be read to five witnesses and signed by them (1645, 1648). Only secondary dispositions and the designation of an executor can be made by a particular writing with date and signature: this act is called a codicil (1651-1654). - The Mexican Code does not admit a private testament unless the opportunity of an authentic testament is lacking. It then requires a declaration made orally before five witnesses. Cf. 3535 ff. - In the Portuguese Code a merely private or holographic testament is ignored. - In English law, according to the Wills Act (1 Vict. c. 26, s. 9), a testament must be written and signed at the end by the testator or by some other person in the presence of the testator and under his direction, and that signature will be made or acknowledged by the testator before at least two witnesses simultaneously present, who, before the testator, will sign the testament. - In U.S.A. law the conditions vary. Some States admit a holographic testament without witnesses; others also admit testaments made orally before witnesses. In most States it is not necessary that the signature of the testator be placed at the end, but they admit that it be at the beginning or at the end. In most States the witnesses, who are required in number either three or two, must be conscious that a testament is at issue, while in some they can be ignorant of the nature of the instrument. The simultaneous presence of the witnesses who subscribe is necessary in few States. Nor is it per se necessary that the place and day be indicated, although that omission is dangerous.

Moreover the Austrian Code also permits a private nuncupative testament. It is enough that before three witnesses simultaneously present the testator declare his last wills. The counsel is added that the witnesses as soon as possible note in writing what the testator declared. Cf. § 585. - The Swiss Code, 506, permits something similar when, on account of imminent death, impeded communications, plague, etc., the ordinary solemnities could not be observed. Then it suffices that the testator declare his will before two witnesses. At once one or the other witness notes the matter, indicating the place, year, month, and day. Both sign the instrument and deposit it without delay with the judicial authority, or, if the testator is an active soldier, with an official who is at least a captain. But that testament loses all force after fifteen days from the time when the ordinary form could have been used (arts. 506-508).

3. On the Form of an Authentic Testament. A double form is distinguished. a) The public form. The testator before a notary, judge, or competent official and witnesses declares orally what he orders to be done with the goods after death. The official makes an authentic instrument concerning the matter, observing the legal solemnities. This testament is called nuncupative. In Germany a minor by birth cannot otherwise make a testament. b) The secret form. The testator approaches the competent official, hands him a wrapper, declaring before witnesses that his last wills are contained in it. This testament need not be written by the testator. It is enough that it be signed by him. Nor is even this required in every law.

4. Revocation of a testament can be explicit or implicit. Explicit revocation is made either by destruction of the private instrument, or by a clause by which, in another testament, every testament made before is said to be abrogated. Implicit revocation is made by a contrary disposition of a more recent testament. From this it is clear how important it is to know on what day the testament was made.

What can be done if the instrument of the testament has perished or has been lost must be sought from the positive laws.

III. On Succession Pacts. While some laws, for example those of Italy, France, and Belgium, excepting the faculty given to spouses of disposing of certain matters concerning a future inheritance through mutual nuptial pacts, altogether reject and invalidate pacts or contracts concerning a future inheritance, others admit that one may express last wills even by a bilateral disposition. This is a succession pact. It draws its origin from old Germanic law. These pacts are admitted by the German Code, art. 2274 ff., and the Swiss, 512 ff. The form of an authentic testament is required. Both parties must manifest their will before a notary or judge. By the Austrian Code, art. 602, pacts which regard the universal inheritance can be made between spouses alone.

This pact binds each party, so that per se it can be revoked only by mutual consent of the parties. For more, cf. the Codes.

IV. Various Objects and Modes of Last Wills. 1. Today it is whole and entire for the testator to constitute either heirs or legatees alone. It is not always clear what precisely the testator intended. The Italian Code, 760, the German, 2087, and the Spanish, 668, indeed call him an heir who succeeds from a testament under a universal title; but that clear distinction is had neither in the French Code nor in the Dutch.

2. Not from the law alone, but also from the style of the tribunals, it must be learned what things can be inserted in a testament usefully, what things in vain, or even not without detriment to the will of the deceased or to a pious cause. Attention must chiefly be paid to matters of the moral or religious order. There is a law which permits that the testator found something for an intellectual, moral, or religious end, and at the same time designate administrators of his confidence; while other laws require that the foundation to be administered be given to a moral person already recognized and competent. A legacy of Masses will not be made efficacious in every respect; indeed, in England it was rejected as superstitious, and only recently has it been admitted; in the U.S.A., because it is of interest to no living person, it happens that it has been invalidated. Dispositions concerning the exclusion of an assisting priest, concerning a religious or non-religious funeral, concerning cremation or customary burial, concerning the religious education of children: what they effect in individual nations must be sought from experts.

3. Peculiar incapacities are established lest certain persons obtain legacies. Sometimes, to protect public morals, a concubinary cannot receive legacies from an accomplice; sometimes, to cut off excesses, a man's second wife cannot obtain more than what the son of the first marriage will receive; sometimes certain persons cannot receive legacies in the last illness, such as a physician, a sacred minister, who, unless they are already otherwise joined by a bond of consanguinity, could abuse their authority.

4. Conditions attached to legacies or to an inheritance are not everywhere estimated as licit and possible in the same way. Thus, for example, the condition of widowhood is admitted here (cf. Italian Code, 850), elsewhere it is rejected; elsewhere, according to the form in which it is made, it will be valid or will be invalidated.

Impossible conditions themselves in French law (900) and Italian law (849) are held as not written; but other laws either invalidate the disposition itself, or distinguish among the impossible conditions themselves, or investigate the will of the testator to see which will is principal.

According to the Austrian Code, a legacy under an impossible or illicit suspensive condition is null; but if it is a resolutory condition, this is held as not written (§ 698; cf. also 712 and 700 for a condition forbidding marriage). - In the Swiss Code, conditions and modes contrary to morals or laws invalidate the legacy itself; if they are merely inconvenient or absurd to some third person, they are held as not written (482). - In the German Code, an impossible mode invalidates the legacy only when it is clear that the liberality would not have existed without such a burden (2195).

5. A mode or burden imposed on a legatee, if it is not fulfilled, does not deprive the legatee of his legacy, unless such was the will of the testator. But one law more easily than another will hold a mode as a condition without which not.

6. Substitutions are chiefly to be attended to. Substitution is, as it were, another institution, or the institution of another heir or legatee after the prior institution. It is distinguished as vulgar, fiduciary, and fideicommissary.

a) Vulgar substitution is had when the substitution of another is foreseen in the place of the prior one who will have been unwilling or unable to enjoy the largition. For example, I bequeath goods to Titius; if he has not accepted, or has died before me, let Caius be the legatee. This substitution is prohibited by no law.

b) Fiduciary substitution is had when the true legatee or heir is concealed under another person who is apparently instituted. This disposition is dangerous because of the not altogether certain interpretation of tribunals. Thus, when the true legatee is not incapable, this substitution in Italy is rather admitted on account of art. 829, which admits no demonstration of dissimulation (cf. Pacifici-Mazzoni, VI, p. 305); while in Belgium one must beware that the person named in the testament, at least from a true liberality made to him, can demonstrate himself to be the legatee, although besides this he must bear burdens. The directly instituted person who must hand over the goods to another, in whole or in part, is as it were the mandatary of the testator and is called a fiduciary.

c) A fideicommissum generally signifies a disposition by which the testator, trusting the heir or legatee, commits something to them to be carried out or handed over. Thus the fiduciary heir receives a fideicommissum most properly.

But fideicommissary substitution properly consists in this, that the testator bequeaths goods to someone with the burden, that is, the strict obligation, of preserving those goods for some time or even until death, and then of handing them over to another designated person. Here, therefore, both are truly but successively instituted. A true substitution supposes a strict obligation. That the testator desires some other destination of the goods, that he expresses his wishes: this does not suffice for substitution. Nor can substitution be confused with a clause by which the testator has merely prohibited alienation: that clause, at least if it prohibits alienation in perpetuity or for the life of the legatee, perhaps can be invalid from another head, but not on account of substitution. Nor is substitution contained in a disposition by which the testator has bequeathed bare ownership to one person and usufruct, even lifelong, to another: both have been immediately instituted.

Temporary substitutions generally incur no reproach. But if the goods must be preserved until death and then handed over to another person, this disposition is admitted by some laws, while by others, with unequal severity, it is prohibited.

In French and Belgian law, 896, and Dutch, 926, they are so rejected that the institution itself is corrupted, that is, the principal disposition to which the burden is annexed. They are permitted, however, in favor of grandchildren or nephews, that is, sons who are born from a son or from a brother or sister. Concerning this exception, art. 1048 and 1019 of the French Code and 1020-1035 of the Dutch Code must be consulted. The same prohibition, circumscribed by a similar exception, is read in the Portuguese Code, 1866-1867, yet in such a way that the principal institution subsists (1869); in the Italian Code, art. 899, these substitutions are completely and without exception prohibited and invalidated, yet in such a way that the principal disposition remains firm (900).

In the Austrian Code, §§ 608 and 622, they are admitted; and also in the German Code, by the formal permission of art. 2100, but per se, with certain exceptions saved, they become ineffective if the substitution has not taken place within thirty years.

In Swiss law, 488, they are admitted once or for one degree; while in Brazilian law, 1739, they can be made up to the second degree; nor does the institution become invalid on account of the prohibited substitution (1740). The same obtains in the Canadian Code Q., art. 932.

N.B. There is also pupillary and quasi-pupillary substitution, by which rather another makes a testament in place of the incapable testator. Concerning it, see what was said above, n. 550, 2.

On Preserving the Legitimate Portion. Donations or testaments by which one disposes beyond what the legal supply allows are called inofficious. Now donations of revenues are never inofficious, nor are remuneratory donations, since they can be called in some way owed. But inofficious testaments or donations are not null, but necessary heirs can act so that the things donated and bequeathed are reduced to a just quantity. On the obligation of conscience, cf. below, 559, 560.

V. Execution of a Testament. Per se the right and office of executing testaments pertains to the heir or heirs.

But the testator can name an executor of the testament and attribute a reward to him. If he attributes none, in one law the office is gratuitous; in another law he obtains a salary, for example, 5 percent.

VI. Efficacy of a Testament. These things must be attended to. 1. The law is accustomed to establish within what time dispositions concerning goods are to be completed by execution. If it has expressly established nothing different, even for pious legacies the testator is judged to have accommodated himself to the civil law.

2. The mode by which legacies are obtained. In Canadian law they must ask nothing from the judge, while in other laws, unless the legacies are paid to them spontaneously, at least particular legacies must be obtained from the heirs or from magistrates.

3. Contribution of debts or burdens of the inheritance. First, no legacy is owed unless after all debts have been paid. Then, even for a pious cause, a strict right to a legacy cannot be constituted insofar as the legitimate portion is harmed. Particular legatees themselves must pay no debt of the deceased. But if they are universal legatees or legatees under a universal title, they must contribute to paying the debts in proportionate part. Yet not even in French law, except in a special case, are they held beyond the powers of the accepted goods.

4. The mode by which a legacy or part of an inheritance not attributed to the designated heir or legatee on account of repudiation or incapacity accrues to other heirs or legatees must be sought from the laws.