8.8.1.2Ineffectual and broken wills
Wills could fail because of events occurring after the making of the will.
The jurists described such situations as ones where the will was
‘ineffectual’ (irritum) or ‘broken’ (ruptum), although little appears to have
hung on the distinction. A will was ineffectual in two situations—when it
failed through lack of heirs, or when the testator suffered loss of status:
Ulpian,%Sabinus, book 10:%A will is rendered ineffectual whenever
something has happened to the testator himself, let us say, if he
loses citizenship through falling into slavery, for example, by
being captured by the enemy or if, being more than twenty years
old, he has allowed himself to be sold with a view to performing
an act or sharing in the price.%(D.28.3.6.5.)
However, it will be recalled that the will of a Roman soldier who died in
captivity was given effect if the will had been made before his capture
(see%4.3.3.3).
A will was regarded as broken if, for example, there was a
successful%querela%or if the will was revoked. As regards the latter case,
the basic%ius civile%rule was that revocation of a mancipatory will was
possible, only by a subsequent mancipatory will.%p. 242↵The revocation
occurred even if the subsequent will failed, providing that it had been
validly made. However, the praetors were prepared to recognize
alternative methods of revocation, both for mancipatory and praetorian
wills, e.g. destroying the whole will, erasing the names of the heirs, or
tearing off the seals. Whatever the form of revocation, it would be
ineffective unless the testator had a clear intention to revoke. One who
had lost his reason could not revoke except in a lucid interval. In the fifth
century AD, additional methods of revocation were introduced. It was
decreed that a later will (even if not validly made) revoked an earlier one,
providing that the following conditions were satisfied: the later will must
have been witnessed by at least five witnesses; and the heirs under it
must have been entitled to take on intestacy, but not those under the
earlier will. It was also provided that a will should be automatically
revoked by the lapse of ten years after its making. But lapse of time did
not revoke a will under Justinian unless the testator made a formal
declaration of revocation.