Testamentary Formalities in Historical and Comparative Perspective

Certain patterns emerge from the preceding chapters. Only three types of will are at all common. Two are private: the holograph will and the witnessed will. The third, the notarial will, is public. And whereas in common law jurisdictions only the witnessed will is usually recognized, in the civil law world there is often a choice between notarial wills and one of the private wills, usually the holograph will. In addition to these ‘ordinary’ wills, many systems provide for one or more ‘special’ wills such as emergency wills or wills made on board a ship or aircraft. This chapter considers the history of each will type, discusses the current state of the law, and traces the gradual retreat from formalities and from formalism itself. A final section evaluates each will type against a set of seven ‘virtues’ (cautionary, protective, facilitative, cheapness, secrecy, discoverability, and evidentiary), and offers some more general conclusions.