Morals of the Church
Library › Wouters, Manual of Moral Theology › Volume I › Book II. On the Exercise of the Christian Life, or on the Cultivation of the Virtues › Treatise II. On the Cultivation of the Moral Virtues › Dissertation I. On the Precepts of the Decalogue › Part VII. On the Seventh and Tenth Precepts of the Decalogue › Section I. On Commutative Justice Itself › Chapter I. On Commutative Justice Generally › Article II. On the Objects of Commutative Justice, or on Strict Rights › § III. On the Modes of Acquiring Strict Rights › Point V. On Hereditary Succession

Section — Wouters, Manual of Moral Theology

II. On Testamentary Succession

818.

I. Notion of a testament. A testament is an act by which someone disposes of his goods for the time that will follow death. The act of a testament can be revoked during life, but it is confirmed by death.

Testamentary Succession

819.

II. Division of a testament. A testament is divided into solemn and non-solemn, or informal, according as the solemnities required by law, or the prescribed form, have been observed, or have not at all or only partly been observed.

Testamentary Succession

820.

III. Faculty of testating. 1. Considered according to natural law, all who enjoy the use of reason can make a testament. Those who habitually or sometimes lack the use of reason can testate during the time of a lucid interval, if such is given. Nevertheless, for the validity of a testament free consent is always required (St. Alphonsus, III, 921, 942).

  1. Who can make a testament, considered according to civil law, see in the law of one's country.

Testamentary Succession

821.

IV. Faculty of acquiring from a testament. Considered according to natural law, all human beings can acquire from a testament (n. 757); who are excluded by civil law, learn again from the law of one's country.

Testamentary Succession

822.

V. The form of a testament is established by civil law; consult it.

Whether and how far an informal testament has force in conscience is explained where discussion will be had concerning an informal contract, or a contract voided by law for another reason.

VI. Testamentary dispositions prohibited by law, interpretation, execution, and revocation of a testament should be consulted in the law of one's country. As regards prohibited dispositions, two things commonly must be guarded against: 1° lest the testament contain a fideicommissary substitution, as it is called; 2° lest the legitimate portion be injured. Now:

  1. Substitution, taken generally, is a clause by which someone is called to an inheritance or legacy after another. It is distinguished as twofold, vulgar and fideicommissary. Vulgar substitution is that by which someone is called to an inheritance or legacy for the case in which another cannot or refuses to accept it;1 fideicommissary substitution is when the burden is imposed on the heir or legatee of preserving the inheritance or legacy and afterward handing it over, either whole or in part, to another. Now fideicommissary substitution is commonly voided by civil law.

  2. The legitimate portion is that part of goods which must be left to necessary heirs, so that it cannot be disposed of either by donation inter vivos or by testament. Who are necessary heirs, and how great the legitimate portion is, see in the law of one's country; as regards its obligation, consult approved interpretation.

1 For example: I constitute Peter heir; if Peter refuses, let Paul be heir.

Testamentary SuccessionFideicommissum (Trust)