Theses de testamentis

A will, according to the author Modestinus, is the lawful expression of our intention regarding that which one wishes to be done after one's death.

II.
There are two types of this: one in writing, the other without writing, which is called a Nuncupative oral will.

III.
Although it is consistent with equity and the law of nature that each person should provide for their posterity through a will: nevertheless, on account of the varying conditions of men and the lack of mental capacity in some, certain people are prohibited from doing so.

IV.
For they are prohibited from the active power of making a will testamenti factio activa due to a defect of their own power: a child under the father's power (filiusfam.), a slave, one captured by enemies, a hostage, a monk: due to a defect of mind and judgment: an impubescent minor, a madman, a mentally incapacitated person, a prodigal: due to a defect of the senses: the deaf, the mute, the blind, who nevertheless, according to the distinction and form handed down by Justinian, can make a will.

V.
Also excluded are those who doubt their own status: likewise those who have suffered the maximum and medium loss of legal status (capitis diminutio): those who become infamous and intestate due to a defamatory poem, and heretics and usurers.

VI.
What was said regarding the child under the father's power is so true that even with the father's consent, he cannot make a will even regarding his own property, for instance, his adventicia property acquired outside the father's estate.