De testamentis et de his, qui testamenta facere non possunt: theses XL

VII.

And of this latter type, there are again two other species: for one is called a Formal Will, the other an Oral Will nuncupatiuum oral/declared by word of mouth.

VIII.

And that is called Formal (which is also said to be done in writing) when the Testator offers his last will, written by himself or by another at his command, to be subscribed and signed by seven witnesses specially requested for this purpose.

IX.

An Oral Will (which has the greatest use in our customs) is named from "naming" nuncupando declaring orally, that is, by expressing it by tongue or voice. And it is said to be made when the Testator, in the presence of the formal number of seven witnesses, expresses his will not contained in writing by living voice, and openly names his heir.

X.

For by these two marks, as it were, this type of Will is distinguished from the former Formal one: first, that in that one, the testator can hide his will from the witnesses, whereas in this one he cannot; second, that in that one, writing is absolutely required, whereas in this one, it is not.

XI.

Nor yet, if a Notary should receive the will declared before witnesses and confirm it with the authority of his own writing (which is usually done almost always today), is it immediately to be thought that this ceases to be an Oral Will.

XII.

There has been much inquiry about Wills: whether they belong to the Law of Nations or the Civil Law? In which question, the more common opinion of the doctors is that the origin of Wills is of the Law of Nations, but the form is of the Civil Law. We, although we admit that the faculty of making a will relies on reason and natural equity, and that the use of Wills is accepted among almost all nations, nevertheless assert consistently that the aforementioned types of Wills belong neither to natural law, nor to the Law of Nations, but to Civil Law.