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HOW TO MAKE A WILL
There are two ways to make a will, either by making them open or closed. An open will, also known as a nuncupative will, is one that is made in front of witnesses. A closed will is one that is written, then sealed, so that witnesses will not know what is in it until the writer is dead. Wills would only be valid if a few rules were followed. If the will was written out, as opposed to being a word of mouth transaction, the bequeather had to sign it himself or have it signed on his behalf if he was unable to write. After the will was signed it would then be taken to a public notary would would register it in legal forms in front of five witnesses. Open wills could be made by the bequeather, the notary, the bequeather's representative, or by word of mouth when the bequeather is on his deathbed. Regardless of how a will is made, several witnesses had to sign it for it to be legal.
MAKING WILLS IN PORTUGAL
By the end of the eighteenth century and the beginning of the nineteenth, making wills was becoming a widespread practice in Portugal. Prior to this time period, wills had been things that only the privileged made, or that were made in special circumstances like when property was being left to someone when a person left to enter a monastery. As the tradition of wills became more common for even the non privileged, the practices that went along with making a will differed between the social realm and the legal realm.
The legal side of wills began to shrink as notaries began to play a smaller role in the creation of wills. They were still able to write a will but they were more often called just to approve one. This approval was then registered in the will, which was kept by the bequeather until his death. Both open and closed wills were approved but more often than not, closed wills had the register of notary approval. Open wills tended to just be signed with witness signatures instead.
As the legal realm of wills became less important, the clerical side of wills began to grow. Clergymen began to play a larger role in the creation of wills because they said that wills were needed for a "good death". Priests were also called on often by people who couldn't write, mostly in rural areas where illiteracy rates were higher. Although priests and clergy were seeming to be helpful and proclaiming a good death, they also used their influence in creating wills to make a profit. When a bequeather died, the priests would demand that his will was presented by the heirs so that it could be transcribed. This transcription could either be in full or just the portions pertaining to the "pious vows" (Durães, 90). Transcription was strictly controlled by the idea of visitation each year. If wills were not provided at the time of visitation, people would be fined.
WILLS IN VENADE
From 1755-1815 in Venade, only 54.8% of the population made wills. The other half of the population died intestate, or without having made a will, and was made up of mostly single people, with some married people and widowers added to the mix. Before the eighteenth century, wills were made largely by men but by the turn of the century women were also creating wills. In Venade almost 70% of the wills created at this time period were for women.
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Those who died without a will were often awarded a "bem de alma", literally a "good thing to the soul" (Durães, 92). The bem de alma was paid for by the heir of the deceased. This heir was often the one entitled to the terça do terço, or the "third of the third" (Durães, 95). The third references the freely disposable part of one's own property, so the heir was the one who was entitled to the third of the disposable part of property.
The heir could then only benefit from his inheritance once the pious legacy of the deceased had been fulfilled. The pious legacy refers to the social status of the dead, the number of priests to be at the funeral, the number of masses to be said, the alimony to be given to the poor, the donations to institutions, the death shroud, and the place of burial. Once all of these things were given and paid for, then the legacy would be fulfilled and the heir could claim his inheritance.
Margarida Durães presents useful information on the creation of wills in Portugal and their actual use in the parish of Venade. Wills are often used by historians as a way to understand what was important in life and in death to people. Durães takes this idea and shows how legal practice, clergymen, and inheritance all were a part of the will creating and executing process during the late eighteenth and early nineteenth centuries. This information helps to better understand death practices in Portugal and how people prepared for death and the aftermath of their deaths.
Pictures
Picture 1 - Map of Portugal, showing Caminha near the top left. Picture found at http://www.manorhouses.com/ports/map.gif
Picture 2 - Image of a Last Will and Testament. Picture found at http://i.telegraph.co.uk/multimedia/archive/02084/will_2084137b.jpg
Sources
Chapter 5 Durães, Margarida. "Testamentary Practices in Venade (Minho), 1755-1815." Death in Portugal: Studies in Portuguese Anthropology and Modern History, edited by Rui Feijo, Herminio Martins, and Joao de Pina-Cabral, 1-16. Oxford: JASO, 1983.
Hello Britney,
ReplyDeleteVery interesting post you have here. It sounds insane that the meaning behind wills in Portugal would decline over time since they were not required. Probably your most interesting statistic would be that only 54.8% in Venade actually had a will. However, it does make sense since you described the idea of the will becoming a formal procedure, much like Western society sees today. Death as a business was a pretty common theme starting in the 19th Century, as we have discussed this semester, and we begin to see this with your example about Portugal. Keep up the good work