WILL or TESTAMENT, the legal documentary instrument by which a person regulates the rights of others over his property or family after his death. In strictness "will" is a general term whilst "testament" applies only to dispositions of personalty ; but this distinction is seldom observed. The legal power of disposi tion of one's property by will is more nearly absolute in England than in any other country. In all systems of law derived from Roman law the power is limited so as to preserve the rights of wives and children to fair shares of a deceased father's estate, and it is not even now quite absolute even in England. This is due partly to custom by which in England property among the wealthier classes is usually settled on the marriage of its owner and all that is reserved to him or her is a power of appointing by will the shares in which the issue of the marriage shall take. But even unsettled property was never absolutely subject to the owner's will. Till the Administration of Estates Act 1925 an owner of an estate in fee-tail had no testamentary power over it. Another full power of testamentary disposition will probably be limited very shortly. At this moment (1929) a bill is before parliament proposing to give the courts power to modify a will which deals unfairly with the testator's family. Legislation to that effect has been passed in most of the British colonies.
The custom which ultimately developed into the will is recog nized in many primitive systems. It is closely connected with ancestor worship and the continuance, for that purpose, of the family. When a citizen was without descendants ancient law allowed him to continue his family by adopting another person's child as his own. Later, as ancestor worship became more or less obsolete, the practice grew up of allowing an owner of property to nominate an heir if he had no descendants. There most legal sys tems stopped. The Roman lawyers developed the idea until it be came the modern power of testament, which has become in Eng land as regards the owner's own property, the power of free dis position by will without regard to the claims of the disposer's wife and children when he has any.
The oldest form of will in Roman law was the patrician will. It simply amounted to the nomination by a sonless patrician of a haeres whose duty it would be on the death of his nominator to carry on the family rites. The ceremony was performed before the comitia calata or assembly of the agnati (male relatives) of the nominator, who would be entitled to succeed to his property if he died without an heir and whose consent to the nomination was in consequence at first necessary. This form of will was possible only where the nominator as a member of a gens was also a member of the comitia calata. Plebeians had no gens; and when they wished to share the patrician privilege of nominating the successor to their family and property they had to do so by a sale of the family to the nominees. At first this sale seems to have been an out and out conveyance inter vivos of the testa tor's property, but gradually it became really the appointment of a trustee to carry out the testamentary dispositions of the nomi nator. It is from this, the plebeian or mancipatory will, as modi fied by the praetors and the emperors, that the modern will is descended.