Definition
A written instrument by which a person directs the disposition of their property after death. Historically, testament referred specifically to a disposition of personal property, as distinguished from a devise, which governed real property. In modern practice, the distinction has largely collapsed: the phrase "last will and testament" is the standard formulation, and the terms will and testament are treated as synonymous in virtually all common law jurisdictions.
In civil law tradition, testament carried additional precision: it was the formal act of appointing an heir or executor according to legally prescribed forms, and could be classified into several recognized types. The Louisiana Civil Code, drawing on French and Spanish civil law sources, defined testament as the act of last will clothed with certain solemnities by which a testator disposes of property either universally, by universal title, or by particular title.
Common Language
Modern common usage (Wiktionary): A solemn, authentic instrument in writing by which a person declares their will as to disposal of their inheritance after death, benefiting specified heirs. Also, one of the two divisions of the Christian scriptures (Old Testament, New Testament).
Historical common usage (Webster's 1913): A solemn, authentic instrument in writing by which a person declares their will as to the disposal of their estate and effects after death. Also, one of the two distinct revelations of God's purposes toward man; a covenant.
The religious usage — Old Testament, New Testament — is the sense most speakers encounter first today, and it is entirely separate from the legal meaning. The legal gap worth noting is narrower: ordinary usage treats testament and will as interchangeable, which is correct for modern purposes but obscures the historically important distinction between testamentary disposition of personal property (testament) and disposition of real property (devise or will). Researchers treating historical sources must not assume the terms were always synonymous.
Common Confusion
TESTAMENT vs. WILL: At common law these were not identical. A testament disposed of personal property (goods, chattels, movables); a will disposed of real property (lands, tenements). The phrase "last will and testament" originated as a conjunction of both instruments in a single document precisely because they were conceptually distinct. Rapalje & Lawrence states plainly: "Strictly speaking, a will of personal property; a will of land not being called a testament." Modern statutes have merged the concepts, but reading pre-twentieth-century sources without awareness of this distinction will produce misreadings.
TESTAMENT vs. CODICIL: A codicil modifies or supplements an existing testament without replacing it. The two instruments are read together as a unified testamentary scheme.
Recognized Forms
/SUBTYPES
Bouvier's identifies the following historically recognized forms drawn from Roman and civil law sources:
Testamentum calatis comitiis — the earliest Roman form, executed before the assembled comitia (public assembly) twice yearly.
Testamentum in procinctu — executed by soldiers before battle, without formal witnesses, on the theory that the military context supplied sufficient solemnity.
Nuncupative testament — an oral declaration of testamentary intent, made before witnesses, recognized at common law for personal property below a threshold value and under specific circumstances (typically deathbed or soldiers/sailors in service). Largely abolished by statute in most jurisdictions.
Holographic testament — written entirely in the testator's own hand, without attesting witnesses; valid in jurisdictions that recognize the holographic form.
Mystic (or sealed) testament — recognized primarily in civil law systems, including Louisiana; the testator presents a sealed document to a notary and witnesses, declaring it to contain their will, without revealing the contents.
Why It Matters in Research
The personal/real property split is the central trap in historical research. Any source predating the widespread statutory consolidation of wills law — roughly pre-twentieth century in most common law jurisdictions — may use testament in the strict sense of personal property only. A researcher reading an eighteenth- or nineteenth-century case or treatise that says a decedent "left no testament" should not assume the decedent died intestate as to their entire estate; they may have left a will of land while dying intestate as to personalty, or vice versa.
Louisiana is a persistent jurisdictional outlier. Because Louisiana's private law derives from the French and Spanish civil law tradition, testament in Louisiana sources carries civil law content — particularly the categories of universal, by universal title, and by particular title disposition — that has no direct common law equivalent. Researchers crossing between Louisiana and common law materials on the same decedent's estate must track this conceptual divergence carefully.
The religious usage creates corpus search noise. Full-text searches across historical legal databases will return hits on "testament" in biblical or theological contexts embedded in opinions (oath-taking, evidence of moral character, religious bequests). This is especially common in equity and probate courts of the eighteenth and early nineteenth centuries, where chancery judges wrote expansively. Filtering for legal usage requires attention to surrounding terms (testator, testatrix, codicil, probate, executor).
The phrase "last will and testament" persists as legal boilerplate long after the distinction it encodes became obsolete. Its presence in a document does not itself signal that civil law or dual-instrument concepts are in play; it is simply the conventional recital.
Historical Dictionary Support
The shelf sources agree on the core common law definition — testament as disposition of personal property taking effect at death — and consistently note the distinction from will as applied to real property. Burrill and Black (1st ed.) align closely. Rapalje & Lawrence is the most emphatic on the strict meaning and notes that by their era the term appeared mainly as a formal heading rather than a term of operative legal significance.
Bouvier diverges usefully by giving substantial treatment to the civil law tradition, cataloguing Roman forms and their evolution, which the common law dictionaries largely omit. Researchers working with Louisiana, Quebec, or comparative materials will find Bouvier the more instructive starting point.
Black's 2nd edition entry as provided appears fragmentary in the source material (the text begins mid-entry on a different topic before pivoting to testament), which itself illustrates a recurring research hazard: pagination errors and scanning artifacts in digitized historical dictionaries can truncate or conflate entries.
None of the historical dictionaries adequately addresses the modern statutory merger of will and testament into a single instrument, which happened incrementally across jurisdictions throughout the nineteenth and twentieth centuries. That evolution must be reconstructed from statutory history rather than dictionary authority.
Jurisdictional Note
Louisiana treats testament under civilian principles, including formal subtypes (notarial, olographic, mystic) codified in the Louisiana Civil Code, and the civil law concept of the universal successor distinguishes Louisiana testamentary practice from common law will practice in ways that affect both interpretation and administration. In the other forty-nine states, testament is a synonym for will under the Uniform Probate Code framework, and the distinction from devise or will of lands has no operative legal significance.
Encyclopedia Cross-Reference
Law Mind Encyclopedia — Wills & Testamentary Succession
Law Mind Encyclopedia — Civil Law Property Transmission
Law Mind Encyclopedia — Intestate Succession (for contrast)