CASE 192: Complaints about the Will*

D. 5.2.1 (Ulpianus libro quarto decimo ad edictum)

Sciendum est frequentes esse inofficiosi querellas: omnibus enim tam parentibus quam liberis de inofficioso licet disputare.

(Ulpian in the fourteenth book on the Edict)

It should be realized that complaints about the undutifulness (of a will) are com­mon, since it is open to parents as well as to children to argue over undutifulness. One’s relatives (cognati) more distant than a brother would do better not to trou­ble themselves with futile expense, since they have no hope of succeeding (in such a lawsuit).

style='font-size:8.0pt;line-height:120%;font-weight:bold'>1.      Duty and the Will. Only persons entitled to succeed on intestacy could bring an action (called the querella inofficiosi, “complaint of undutifulness”) charg­ing that a will treated close family members inappropriately. To qualify, a plaintiff’s bequest under the will had to be less than a quarter of what he or she would have received on intestacy (Ulpian, D. 5.2.8.8). Success normally meant that the will was overturned entirely, and the regime on intestacy went into effect (Ulpian, D. 5.2.6.1, 8.16); but if there were multiple heirs, each had to be sued individually and split decisions were not unknown (see Pliny, Epistulae 6.33.2-6; Papinian, D. 5.2.15.2; Ulpian, D. 5.2.24). Thus, the suc­cessful plaintiff could receive at least four times the amount required to ex­clude his suit in the first place but had to bear the cost and risk of bringing one or more lawsuits.

2.      Chances of Success. Ulpian concedes that a broad circle of relations might bring a suit against an undutiful will but notes that relatives beyond the de­gree of brother have no chance of success. Why should this be so? Why did­n’t the praetor simply exclude such suits as a matter of law? Does Ulpian mean to suggest that suits by close relatives were usually worth the expense? In any case, it is worth noting that the complaint was available not only to ag­nates but to relatives by females as well (Marcellus, D. 5.2.5).

3.      Disrespecting the Emperor. Imperial rescripts, says Ulpian (D. 5.2.8.2), have often held that a suit on an undutiful will can be brought even when the em­peror has been named as an heir. Why might this have been a concern? Would the legal admissibility of such lawsuits be the only worry that might deter potential plaintiffs?

D. 5.2.2 (Marcianus libro quarto Institutionum)

Hoc colore inofficioso testamento agitur, quasi non sanae mentis fuerunt, ut testamentum ordinarent. et hoc dicitur non quasi vere furiosus vel demens testatus sit, sed recte quidem fecit testamentum, sed non ex officio pietatis: nam si vere fu­riosus esset vel demens, nullum est testamentum.

(Marcian in the fourth book of his Institutes)

An action on an undutiful will is brought on the argumentative premise that they (the testators) were of unsound mind for composing a will.

1.      Madmen and the Will. The praetor officially recognized some persons as in­sane (furiosi) and granted guardians (curatores) to look after their property (see Case 223). The insane lacked legal capacity to make a valid will, al­though a will made prior to the onset of insanity or during intermittent lucid­ity remained valid (Paul, Sent. 3.4a.5; Tit. Ulp. 20.13). Some sources hint that a will's validity could also be attacked on the ground that the testator was ac­tually insane though not declared so (e.g., Paul, Sent. 3.4a.11). According to Marcian, how does such an attack differ from the complaint on undutiful­ness? In this action is actual insanity an issue at all?

2.      Degrees of Madness. If the result is the same no matter whether the testator was insane or undutiful, what is the point of Marcian's distinction? Is it that proving madness is more difficult than proving lack of duty? Or that failure to observe a basic social responsibility can be regarded as madness per se? In other words, does Roman law consider highly inappropriate social behavior as akin to madness? What arguments might be available to a defender of the will as written?

3.      Pietas. This word means roughly “family affection,” “the love and respect owed by close family members to one another.” Does the concept help ex­plain Marcian's argument about quasi insanity? A text of Marcellus (D. 5.2.5) appears to equate this state of mind with unfairness: a testator “seems to have been of unsound mind when he unfairly (inique) drew up his will.” Unfair­ness by whose standard? In order to upset a will, should it be enough to say of it that the testator “unfairly” allocated his estate among his near relatives?