As we have seen in Part A, although intestate succession was the default position in Roman law, its rules were such that many Romans were understandably uncomfortable with them.
Two features were especially cumbersome: shares were allocated to children in a potentially undesirable way (no discrimination between males and females or between older and younger children); and widowed spouses, especially wives, were poorly protected.
For this reason, many Romans preferred to write wills that departed from intestate principles.Older Roman law set significant obstacles in their way, however. In order to make a will, Romans were obliged to perform a prescribed ceremony, and even innocent mistakes in execution could be fatal; but eventually the Roman praetor intervened to provide more flexibility. Still more difficulty was caused by the intestate preference for sui heredes, those family members who became sui iuris upon the death of a paterfamilias. A will that ignored a suus heres was in principle void, even if the testator was unaware of the heir's existence (see Case 46). Therefore, in drafting their wills, testators were obliged to exercise great care, though legislation and juristic interpretation found ways to circumvent some of the difficulties.
Once the formal requirements were met, Roman testators enjoyed considerable freedom to dispose of their estates as they wished. This freedom, to be sure, was hedged about by limits intended to serve the interests of clarity and good form, limits that if not observed might even compromise the effectiveness of the will. Further, the praetor provided some remedy when wills departed grossly from acceptable social standards. But juristic discussion of wills is characterized in general by a concern to implement the testators actual desires: what did the testator want, and are his or her wishes better located in the letter or the spirit of the will?
As it seems, Roman testators fairly seldom used their freedom in order to depart radically from the felt obligations of family and class; indeed, wills usually fit into the broader strategies of property devolution pursued by the Roman elite. As a study by Edward Champlin has shown, in our sources the typical Roman testator is an upper-class male, a pater familias who is seeking to control the transfer of property into the next generation.
In 90 percent of the cases known to us, the property left in wills goes to relatives in the third degree or closer: children, grandchildren, parents, siblings, nephews, and nieces. Children are favored above all others, including spouses. The overwhelming majority of Roman testators make all or some of their children either heirs or major legatees. Even where nonfamily heirs are known, it is often possible that close family members were coheirs. A central concern of a Roman testator, in other words, was to sustain the economic viability and social status of his family.But this was far from the only concern. Succession had a moral aspect as well. The Greek satirist Lucian gets at this when he has a philosopher declare that the Romans tell the truth only once in their lives: in their wills (Nigrinus 30). Makers of wills often made use of their freedom to express their true opinion of others, in language that to outsiders might seem at times excessive and unseemly. In short, moral judgments were made both in the will and about the will, and writing a will was considered a moral duty in itself.