Forms of testaments

Originally, there were two forms of testament (Gaius 2.101). A will could be made either at assemblies of the Roman people (comitia calata), which were held twice a year for the purpose of making wills; or when war was imminent, before going into battle (in procinctu).

In classical Roman law, only the mancipatory testament remained, but with some changes: first, it became a common practice to provide a written document with the testamentary instructions; second, the trustee and the scale-holder were considered additional witnesses; third, the document containing the instructions had to be sealed by seven witnesses (including the scale-holder and the trustee) who did not know the content of the testator’s will. The document did not have to be signed or sealed by the testator himself, and it could have been drafted by someone other than the testator.

Over time, the praetor simplified the formalities and began to accept as a valid testament a written document sealed by seven witnesses, even without the ritual of the mancipation. The praetor granted the possession of the estate to any person appointed as heir in such a will. When a will that was valid

The law of succession 171 according to civil law was followed by a testament valid according to prae­torian law, the former was not technically broken (testamentum ruptum).

Particular provisions regarding military wills were introduced beginning with Julius Caesar (Ulpian, D. 29.1.1pr.) to exempt soldiers from relevant testamentary formalities. Thus, military wills were considered valid even if they were not sealed by seven witnesses and did not appoint any heirs. They also did not need to be written in Latin, and the rule of exclusion of succes­sions (between testate and intestate) was not applied. The last desires of a loyal fallen soldier were enforceable and had to be executed, even when these soldiers, in the poetic words of an imperial constitution of Constantine, “had written their intentions on the scabbards of their swords, or on their shields, with the crimson letters of their own blood, or had traced them in the dust with the points of their swords, at the time when they were dying in battle” (C.J. 6.21.15 of 337).

Different from the testament was the codicil, a written document that added to or supplemented an existing will. Codicils were free from the formalities relevant to wills, e.g., the seal of seven witnesses. An heir could not be appointed in a codicil, but a codicil could specify the name of an heir appointed generically in a will - e.g., if the will had stated that “the person whom I will make heir in my codicil shall be heir” (see Papinian, D. 28.5.78 [77]). In general, if the codicil was expressly confirmed and incorporated by the will, it could contain any provisions that a testament could contain: legacies, manumissions, appointments of tutors, and so on. Without confirmation in a will, a codicil could only create trusts (Gaius 2.270 a).

In 2015, Maria Novak published an excellent collection of papyri or wax tablets containing original or copies of preserved wills in Greek and Latin, accompanied with English translations, from the Hellenistic period until the end of Roman rule in the seventh century (see bibliography). Most of the documents were discovered in Egypt.