Early Forms of Will

The earliest form of will known to Roman law was the so-called testamentum calatis comitiis: a will created in a strictly formal manner, orally, before the popular assembly (comitia curiata).

A third form of will that emerged at an early stage and continued to be used for a relatively long period was the testamentum per aes et libram. This involved an adaptation to the purpose of will-making of the process of mancipatio that, as previously noted, was employed in various contexts to render the transfer of rights from one person to another effective. In original form, the testamentum per aes et libram consisted of the formal transfer of the testator's estate by way of mancipatio to a trustee (familiae emptor) with oral instructions (nuncupatio) that the latter should divide it among the persons nominated as heirs after the testator's death. In early law the trustee stood in place of an heir (heredis loco) and could, in theory, govern the estate in whatever manner he wished as though he were the heir. At a later stage, however, the familiae emptor was considered to be no more than an executor of the testator's wishes and could be compelled by the beneficiaries to give effect to the will.

The disadvantages of the above-mentioned forms of will, especially their extreme formalism, prompted the praetor to intervene in a similar way as in the case of intestate succession by promising bonorum possessio of an estate to persons who were nominated as heirs in a written will sealed by seven witnesses.^[1064] It should be noted that the bonorum possessio granted by the praetor was initially unprotected (sine re) and could be successfully challenged by the civil law heir's ab intestato. In later times, however, it enjoyed protection (cum re) by means of an exceptio doli that Emperor Antoninus Pius granted as a defence against a claim by a third party to the estate.^[1065] This praetorian arrangement remained in place until the time of Justinian.

5.3.2