Definition
A person who lacks the legal capacity to make a valid will. The term describes a status — the condition of being legally disqualified from executing a testament — rather than the act of dying without one. Historically, the class of intestable persons included infants (minors below the age of legal capacity), persons of unsound mind (lunatics), persons civilly dead, and, under older common law, married women who lacked independent legal authority to dispose of property.
Intestable should not be confused with intestate. A person may die intestate (without a will) without ever having been intestable. Conversely, an intestable person who later acquires capacity — a minor who reaches majority, for example — may then execute a valid will.
Common Language
Modern common usage (Wiktionary): Not legally permitted to make a will, as by reason of being under the age of majority or mentally incompetent.
Historical common usage (Webster's 1913): Not capable of making a will; not legally qualified or competent to make a testament.
The common usage here tracks the legal definition closely, which is unusual. The term has no significant life outside legal and quasi-legal writing, so Webster's 1913 and Wiktionary essentially reproduce the legal definition without distortion. Researchers should nonetheless note that common usage tends to collapse the term into its most obvious modern examples (minors, incompetents) and omits the historically important categories of civil death and coverture.
Common Confusion
INTESTABLE vs. INTESTATE: These terms are etymologically close and are regularly conflated in older secondary sources and even in some judicial writing. Intestate describes the condition of a decedent who died without a valid will, regardless of capacity. Intestable describes a living person who lacks the legal power to make one. A person who is intestable will, if they die in that condition, die intestate — but the terms operate at different points in time and describe different legal disabilities. Intestate is a status triggered at death; intestable is a status that may arise and resolve during life.
INTESTABLE vs. INTESTABILIS: Burrill flags that the Latin intestabilis carried a distinct and harsher meaning in Roman law — a person declared infamous and stripped of the right to witness or benefit from a will, as a penalty. That meaning does not carry into English common law usage of intestable, which is confined to incapacity rather than punitive disqualification. Researchers working with civil law sources or early modern texts citing Roman authority should be alert to this divergence.
Why It Matters in Research
Intestable is a term that appears mainly in doctrinal and encyclopedic sources rather than in primary law. Finding it in a judicial opinion usually signals a discussion of testamentary capacity — the threshold question in will contests. Researchers tracing a capacity dispute through historical sources should expect the term to be used loosely, sometimes interchangeably with terms like non compos mentis or simply "incompetent."
Three research traps deserve attention. First, the category of intestable persons has contracted significantly over time. Coverture — the common law rule that rendered married women unable to make wills without special authority — was a live doctrine in American and English law well into the nineteenth century and appears without comment in Bouvier's treatment. Modern sources omit it entirely. A researcher reading older secondary materials must account for this now-abolished category. Second, civil death as a basis for intestability has similarly receded; most American jurisdictions have abolished or severely curtailed civil death statutes, but historical sources treat it as a standard example. Third, the age threshold for testamentary capacity varies by jurisdiction and has changed over time, so references to "infants" as intestable must be checked against the applicable age rules for the period and place at issue.
Because intestable is definitional rather than operative — courts determine testamentary capacity, they do not typically apply the word intestable as a term of art — the term functions primarily as a pointer. When encountered in research, treat it as directing attention to the testamentary capacity doctrine and the evidentiary standards courts use to assess it.
The encyclopedia entries on intestate succession (linked above) are relevant background but address distribution rules for estates where no valid will exists — the downstream consequence of a person dying in an intestable condition. Researchers should consult those entries after resolving the threshold capacity question.
Historical Dictionary Support
The five source dictionaries are in close agreement on the core definition: intestable means lacking testamentary capacity. Black's (both editions) and Rapalje & Lawrence offer nearly identical formulations, centering on the triad of infant, lunatic, and civilly dead person. Bouvier adds the married woman under coverture, which is historically accurate and important — the omission of this category from Black's likely reflects editorial choices about space or audience rather than a genuine legal difference. Burrill is the most analytically useful of the five because it flags the Roman law ancestor (intestabilis) and signals that the English term departs from its Latin source in a meaningful way, a point the other dictionaries do not make.
None of the historical dictionaries address the procedural question of how intestability is determined — that is, what evidence a court requires to find that a testator lacked capacity. That gap is significant for litigation research and must be filled from case law and treatise sources outside this dictionary shelf.
Jurisdictional Note
Testamentary capacity rules — and thus the operative content of who qualifies as intestable — are creatures of state law in the United States. Most states require that a testator be of legal age (commonly eighteen, though some states permit earlier capacity for married persons or military members) and of sound mind. The precise standard for mental capacity varies by jurisdiction. Researchers should not assume that a historical formulation of intestable maps cleanly onto current law in any particular state.