In classical Roman law, intestacy is the default position: what happens when a sui iuris Roman dies without a will that results in an appointed heir or heirs.
Doubtless, as is also true today, many Romans simply never wrote a will; often their estates were insufficiently great to be worth the effort, or they simply forgot to do so.
Others, even though of sui iuris status, were legally incapable of writing wills: all children of minor age, the deaf and mute, the prodigal and the insane (if they had guardians), and others. Until the reign of Hadrian (A.D. 117-138), women who had not undergone a legal change of status known as capitis deminutio (see Case 1) could not write a will; and both before and after Hadrian, women without the Augustan “right of children” (ius liberorum) needed the permission of a guardian (tutor) to make a will (Case 228).But even when Romans both desired and had the legal capacity to write wills, their wills often could fail because they did not meet some formal requirement. Such failures also led to the default scenario of intestacy, the law that dictated who would receive the estate.
From the start, the law on intestacy is confusing because we are confronted with the dual system of the civil and praetorian law. The relationship between the two is summarized by a famous statement of the jurist Papinian, who observed that the praetor aimed to “support, supplement, and correct” the older ius civile (D. 1.1.7.1). In fact, Papinian's summary applies only to details; the civil law was in no general sense invalidated, superseded, or set aside by the praetorian system. We should thus be cautious of generalizations about an evolutionary process whereby the claims of a wider circle of blood kin prevailed over the older regimes recognition of the rights of the agnatic familia. In the law of succession, the tug-of-war between the agnatic and cognatic conceptions of the family reaches back to the midRepublic at minimum, and it was never fully resolved in classical Roman law.
Indeed, even after the praetorian reforms, the law of intestate succession remained largely bound to the viewpoint of the paterfamilias. Only in the second century A.D. did two statutes, the Senatusconsulta (SCC) Tertullianum and Orphi- tianum, finally privilege the reciprocal interests of mothers and children, and then only on a limited basis.
The complex rules on intestacy allowed the jurists considerable room for maneuver. Their efforts reveal an aim similar to that of most testators: a concern to protect the interests of the offspring of the decedent as the preferred ultimate recipients of a decedents property.
More on the topic In classical Roman law, intestacy is the default position: what happens when a sui iuris Roman dies without a will that results in an appointed heir or heirs.:
- The primary function of a will in classical Roman law was to appoint an heir or heirs, who would then succeed into the position of the testator according to their shares of the inheritance.
- Late Roman law, like classical law, denied legal validity to some unions.
- CASE 177: Privileged Heirs*
- ROMAN INFLUENCES
- In the fourth and fifth centuries, Roman marriage law takes on quite a different appearance from the “classical” law of the first three centuries.
- As we mentioned in Chapter 9, the status of a borrower and his contract is either “default” or “non-default.”
- The Roman Builders
- CASE 188: Passing over Sui Heredes
- CASE 81: A Wife Dies
- Stilicho, Roman and Barbarian