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Certain patterns emerge from the preceding chapters. Only three types of will are at all common. Two are private: the holograph will and the witnessed will. The third, the notarial will, is public. And whereas in common law jurisdictions only the witnessed will is usually recognized, in the civil law world there is often a choice between notarial wills and one of the private wills, usually the holograph will. In addition to these ‘ordinary’ wills, many systems provide for one or more ‘special’ wills such as emergency wills or wills made on board a ship or aircraft. This chapter considers the history of each will type, discusses the current state of the law, and traces the gradual retreat from formalities and from formalism itself. A final section evaluates each will type against a set of seven ‘virtues’ (cautionary, protective, facilitative, cheapness, secrecy, discoverability, and evidentiary), and offers some more general conclusions.

This chapter shows that the law on testamentary formalities in the Latin American countries is historically rooted in the European ius commune and that it has preserved this tradition to a remarkable extent until today. Ordinary wills must be made in writing, either before a notary and witnesses (public will), or before witnesses alone (private will). The recognition of holograph wills on the other hand is still rather limited. As testacy rates are generally low, legislatures seem to have felt little pressure to adapt to the necessities of modern times. At the same time, there is a slow, but clearly perceptible trend towards the relaxation of formal requirements, which is also supported by court practice.

This chapter discusses the issue of testamentary formalities in the context of South Africa's ‘mixed legal system’. It traces the history of will-making in South Africa, explaining how the original Roman and Roman-Dutch will forms were eventually replaced by the witnessed or statutory will (with the relevant South African Wills Act based on the English Wills Act of 1837). The scope of the South African Act is set out and the formalities regarding both the execution and amendment of wills are analysed and explained with reference to many examples from case law. The chapter also discusses the power of South African courts to condone wills that do not comply with the formalities set out in the Act (referred to as a so-called ‘dispensing power’ in certain other legal systems).