The ancient Egyptian testamentary disposition

• Jurisdiction: South Africa
• Date: 17 January 2021
• Author: Van Blerk, N.
• Citation: (2020) 26(1) Fundamina 199
• Pages: 199-231
• Published date: 17 January 2021

199

THE ANCIENT EGYPTIAN

TESTAMENTARY DISPOSITION

Nico van Blerk*

ABSTRACT

This

contribution

discusses

the

ancient

Egyptian

testamentary

disposition

document

as

an

arrangement

made

prior

to

death.

It

discusses from a legal perspective different documents used for this

purpose.

The

purpose

of

a

testamentary

disposition

was

to

make

decisions

about

one’s

assets

before

death.

An

attempt

is

made

to

indicate

that

the

testamentary

disposition

document

was

used

from

very

early

in

ancient

Egyptian

history

and

different

documents

were

used as a will by the testator/testatrix.

The purpose of the testamentary

disposition was, essentially, to alter the customary intestate succession

law.

The initial emphasis and connection with religion diminished as

different documents were used to make provision prior to death of what

was to become of one’s estate.

Studying these different testamentary

dispositions,

we

may

learn

more

about

testate

succession

law

in

ancient Egypt.

Keywords: Anc ient

Egypt;

testate

succession;

testamentary

disposition;

will;

testament;

imyt-pr;

marriage

settlements;

donations;

adoptions;

divisions; ctitious sales

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NICO VAN BLERK

200

1 Introduction

If a person wishes to leave his/her property to someone after his/her

death, he or she needs to make their wishes known in a document,

which, today, according to the Roman law tradition in South

Africa, we would call a last will or testament.1 In a will, testators

may make their wishes known and dispose of their property at their

own discretion; this capacity of the testator is known as freedom

of testation.2 Today, this forms part of testate succession law. In

ancient Egypt,3 we have examples of testamentary dispositions

dating already from the Old Kingdom4 at a time when Rome and

Roman law did not even exist.

However, as Lippert correctly points out, modern legal historians

are reluctant to use the term “will” or “testament” for these ancient

documents as they do not strictly conform to the Roman legal

denition of testamentum.5 It is important to keep in mind that

one cannot impose modern terminology of concepts onto ancient

Egypt.6 For this reason and for purposes of this study, the term

“testamentary disposition” refers to any disposition of property by

the deceased in ancient Egypt prior to death, only becoming effective

upon death, while taking on the form of a variety of documents.

Studying the ancient Egyptian testamentary disposition, one must

always do so against the backdrop of the social context of the time. Law

is only one aspect of society and as such should always be understood

and studied in the wider context of society, necessitating greater

insights into social and ethnic structures.7 The testamentary disposition

document would have enabled the testator/testatrix to change the

* LLB MA D Litt & Phil (Unisa). Senior Lecturer in Ancient Near Eastern

Studies in the Department of Biblical and Ancient Studies at the University

of South Africa.

1 See Schoeman & De Waal 2005: 34.

2 Idem at 120.

3 See Addendum for a timeline of ancient Egypt.

4 See Westbrook 2003: 58.

5 2013: 4.

6 “Wenn man überhaupt den Ausdruck ‘Testament’ verwenden will, um damit

eine ägyptische Urkunde zu bezeichnen, so muß man sich wieder darüber klar

sein, daß man damit Vorstellungen, die aus dem römischen Recht stammen,

dem Leser suggeriert.” (“When one wants to use the term/word ‘Testament’

at all to refer to an Egyptian document, one must realise once again that it

suggests to the reader ideas derived from Roman law.”). See Seidl 1957: 58.

7 See Götze 1948: 119.

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customary intestate succession rules. The belief in the afterlife and

the need to make provision for sustenance after death, taking care of

family property and the nuclear family, were major reasons for the very

rst appearance of arrangements made prior to death, which in effect

represented the very rst testamentary dispositions.8 The testamentary

disposition document was a way to alter customary intestate succession.

It is conceivable that the ancient Egyptians did not necessarily

use only one specic document to achieve this, but used a range of

possible documents.9 This further necessitates the wider term “testa-

mentary disposition”.

2 Sources

The important role of documentation must be taken into account

when studying ancient Egyptian law in general, and specically when

studying ancient Egyptian succession law. Historical sources of law

are inevitably documentary in nature; however, sources having legal

authority may be in written or oral form.10 Oral documentation

took the form of witnesses, human memories and testimonies.11

These memories of important transactions could be strengthened

by accompanying public spectacles and rituals.12

In ancient Egypt, the development of writing did not immediately

replace the oral form of record-keeping.13 The systematisation and

uniformity attained by writing nally convinced people that written

records have their own xed forms,14 reducing the barrier between

oral practice and written records. Haring suggests that the change is

“partly because oral practice never entirely disappears”.15

8 See my discussion in Van Blerk 2019: 171.

9 See Mrsich 1975: 1251.

10 See Westbrook 2003: 12.

11 See Muhs 2016: 5.

12 Ibid.

13 Ibid.

14 See Haring 2003: 258. According to Haring (idem at 261), depositions and

oaths emerged as regular types of texts in the second half of the Nineteenth

Dynasty, becoming more abundant in the rst half of the Twentieth Dynasty.

These formulas can be seen as scribal instructions to the written versions of

oral statements. Oaths and depositions therefore developed into more or less

formal documents, which testify to oral practice at the time at Deir el-Medina

(see idem at 262).

15 Idem at 258.

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