1. Broadly, the capacity to take part in a will, as testator, heir, or witness.
2. The capacity to make a will, open to any citizen, male or female, sui juris, and over puberty. • This term is sometimes known as “active” testamenti factio or testamenti factio activa, though the latter phrase was not known to the Roman law.
3. The capacity to receive property by will. • Junian Latini and peregrini did not have this capacity. It is also known as “passive” testamenti factio or testamenti factio passiva, though the latter phrase was (like testamenti factio activa) unknown to the Roman law. See LATINI JUNIANI; PEREGRINUS4. The capacity to witness a will. • Women did not have this capacity.
— Also termed factio testamenti.
“Under the civil law, this was a power … vested only in the Roman citizen …. The testamenti factio was necessary to any participation whatever in a testament. Without it, no one could make a will, or take a legacy, or even be a witness to the execution of a will …. In Scotch law, this phrase can only signify the power of making a will, as any one may be a beneficiary under another’s settlement.” John Trayner, Trayner’s Latin Maxims 216–17 (4th ed. 1894).
