November 28, 2021
The will is a unilateral legal act that is not receptive mortis causa by which a person expresses his will and has his rights for the time in which he has ceased to live.
The will stems from the idea of attributing relevance to the will of the deceased within the succession due to death and allowing him to decide who to attribute his assets or rights to.
It is a unilateral act, mortis causa, of a personal nature.
The declarations contained therein generally have a patrimonial content or in any case capable of producing legal effects. However, it can also contain statements of a moral, philosophical, political or other kind.
The will in the various legal systems
The institute in question has differences from one legal system to another and between different national legal systems, for a specific study see the items listed below.
In ancient Rome there were three different procedures for making a will:
publicly in Rome, before Comitia Calata;
before going into battle; in these cases, shield in hand and toga close to the waist, in front of three fellow soldiers, they verbally nominated their heir;
with the alienation of assets.
The revocability of the will is one of its essential features, so much so that it appears verbatim already in the notion of this act, which the legislator provides in the first paragraph of art. 587 of the Civil Code: "The will is a revocable act by which someone disposes, for the time in which he has ceased to live, of all his possessions or part of them". The revocability of the will allows the testator to revoke or change the testamentary dispositions up to the last moment of life. To this faculty - as expressly emerges from the text of art. 679 of the Italian Civil Code - the testator cannot in any way renounce: hence the prohibition to commit to a subject to establish him or her heir (so-called founding agreement).
The revocation can be expressed or tacit:
The express revocation can be done with a deed that has the same formal requirements for a valid will or with a public deed from which expressly emerges the will of the testator to revoke all or part of the previous testamentary provisions.
The tacit revocation occurs in various cases: first of all with a later will containing provisions incompatible with the previous ones, which are therefore given as tacitly revoked. Secondly, with regard to the holographic will alone, its destruction, laceration or cancellation constitutes a conclusive behavior from which the revocation of the provisions contained therein is presumed. It is without prejudice to the possibility of proving that the destruction, laceration or cancellation was the work of a person other than the testator or that the testator had no intention of revoking the will.The testamentary revocation can also take place by law (so-called legal revocation). This occurs when the testamentary provisions, dating back to the time in which the testator did not have or was unaware of having children or descendants, are by law revoked in the event of the occurrence of children or descendants of the testator: we speak of revocation for the survival of children, governed by 'art. 687 of the Italian Civil Code
Giovanni Criscuoli, The testament: norms and cases, Padua, Cedam, 1995. ISBN 8813191790.
Succession due to death
Testament (Italian legal system)
Wikiquote contains quotes from or in will
Wiktionary contains the dictionary lemma «testament»
Wikimedia Commons contains images or other files on a will
testament, in Dictionary of History, Institute of the Italian Encyclopedia, 2010.
(EN) Testament, in Encyclopedia Britannica, Encyclopædia Britannica, Inc.