Invalidity and Revocation of a Will

In general, the principle prevailed that a will remained valid and enforceable until it was either declared invalid or revoked.^{^[1111]} A will was deemed invalid when it was not composed in accordance with the prescribed legal formalities or where the requirement of testamenti factio had not been met.

This outcome also pertained to the cases where a suus heres had neither been instituted as heir nor expressly disinherited, or if certain persons had been passed over or disinherited in a will without a valid reason.^{^[1112]} Furthermore, a valid will would become invalid if the testator suffered capitis deminutio^{^[1113]}; if the instituted heir could not or did not wish to inherit; and where a suus heres arrived on the scene after the will had been created (for example, where a child was born to the testator or the testator acquired a new suus heres by adoption).^{^[1114]} If a testator made a valid will at a later stage, the previous will was automatically invalidated,^{^[1115]} even if it was not explicitly revoked. In early law, destruction of the written document on which the will appeared did not immediately render the will invalid. In later law, however, the will was invalidated under such circumstances.^{^[1116]}

Another source of invalidity of a will was revocation by the testator. According to the ius civile, revocation of the will per aes et libram could be effected only by the composition of a new will. This meant that every modification required the creation of a new will. In later law, alterations that did not relate to the institution of heirs could be made by means of codicilli testamento confirmati (a codicil confirmed in a testament). Under the law of Justinian it was possible for a testator to revoke his will by making a formal declaration of revocation before three witnesses or a public official, provided that 10 years had elapsed since the creation of the will.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Invalidity and Revocation of a Will

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