TESTATE SUCCESSION

Instead of leaving the distribution of the estate to the rules of intestacy, it was common to make provision for this by means of a will. Indeed, among the upper class it was seen as irresponsible not to make a will.

Requirements for a valid will

As a starting point, only one who was of sound mind and past the age of puberty could make a will. Normally, the testator also had to be sui iuris. We saw in Chapter 3, though, that there were certain instances when property could be owned by persons who were alieni iuris. An example of this was the soldier’s peculium castrense. In such cases, an alieni iuris person could make a will.

The will in the developed law had four main characteristics:

“(i) it appoints a universal successor, who may be someone other than the heres ab intestato [heir on intestacy]; (ii) it may make gifts (legacies) out of the estate, and may make other particular dispositions (ap­pointment of tutors, manumission of slaves); (iii) it is ‘ambulatory’, or ‘speaks from death’ (e.g. the property disposed of is taken to include things which the testator acquired only after making the will, and a description such as ‘my nephews’ is taken to include those born since the will was made and to exclude those who have died since then (or rather their heirs)); (iv) it is revocable.” (Nicholas, An Introduction to Roman Law, pp. 252—253)

The Roman will, then, has in substance if not in form much in common with the modern will. However, it need not be assumed that the earlier forms of wills in Roman law necessarily had all of these characteristics.

Several types of will were recognised as the law developed. The earliest form of will was the comitial will, which was made before the comitia curiata. Less important was the testamentum in procinctu (“will made in battle array”), which could be made by soldiers before battle.

The comitial will was hardly convenient, however, and both it and the testamentum in procinctu became obsolete during the Republic. In the early Republic, a different form of will was developed, known as the manci- patory will. In form, this was a mancipatio (see Chapter 5) of the testator’s estate in favour of an individual known as familiae emptor, who agreed to take the property subject to an obligation to follow the testator’s instruc­tions. However, the conveyance and the involvement of the familiae emptor as grantee were fictions. The transfer of property occurred only on death, and the recipient was the heir named in the will rather than the familiae emptor.

In the later Republic, the practice with mancipatory wills was to record the details of the testator’s intentions on wax tablets, sealed by the five witnesses to the mancipatio as well as the familiae emptor and libripens. At this point, the mancipatio ceremony itself became essentially superfluous. Ac­cordingly, the praetor allowed enforcement of such wills by bonorum possessio, even where the mancipatio had not been carried out, as long as the will was sealed by seven witnesses.

Further alterations to the formal requirements of the will were made through the Empire. By Justinian’s time, the normal form of will was the “tripartite” will (testamentum tripertitum), so called because it was developed from three sources, the ius civile, the praetorian law and imperial legisla­tion. The important innovation in this form of will was the requirement for the testator’s subscription. In the earlier law, the testator neither signed nor sealed the will, although the will was protected from forgery by the witnesses sealing the wax tablets on which it was written. However, wills now tended to be written on sheets of parchment rather than tablets, and so a new method of authentication was necessary.

Appointment of heir

In terms of the content of the will, the only requirement was that it appoint someone as heir.

It was common to provide for substitutes in case of the failure or refusal of the named heir, in order to prevent the estate falling into intestacy. To provide further security against the failure of the will, the list of substitutes would often include a person falling into the category known as necessarii heredes. The necessarii heredes were the sui heredes together with any slave manumitted by the will. Necessarii heredes could not refuse appointment as heir.

Appointment as heir meant, as we have seen, assumption of liability for the deceased’s debts. Steps were, however, taken to protect heirs from the consequences of this. Where the heir was one of the sui heredes, the praetor allowed the ius abstinendi (the right to abstain). This allowed the deceased’s estate to be sold off for the benefit of the creditors, but without any right to recover any shortfall from the heir. To necessarii heredes generally there was also allowed the separatio bonorum (separation of property), separating the deceased’s estate, and therefore the deceased’s debts, from anything owed by the deceased to the heir and anything acquired by the heir after the death.

The mixing of the estates of the deceased and the heir also posed risks to the creditors of the deceased, for, while the deceased’s estate might be solvent, this might not be the case for the heir’s estate. For this reason, the deceased’s creditors could also seek the separatio bonorum, keeping the de­ceased’s assets separate from those of the heir until the debts were paid.

Restrictions on the contents of wills

There were some restrictions on the contents ofwills. As a will was a product of the ius civile, only those with Roman citizenship rights could benefit from one.

Subject to these points, the Roman testator had almost complete freedom of testation. In addition to the appointment of the heir, the will might include numerous specific legacies, and these would be permissible as long as they were not illegal, immoral or impossible.

To the freedom of testation, however, there were important exceptions in favour of the deceased’s family. There was a rule, for example, that sui heredes could be disinherited only by express provision in the will. The original justification for this rule was that, as we have seen, the sui heredes were in principle entitled to be heirs, and so this entitlement could be removed only by express provision. It should be noted, though, that we are concerned here only with the appointment of heirs. A child who had been excluded from being heir might nonetheless be given a legacy in the will.

By praetorian development, for male sui heredes, this disinheritance had to be done by name in the will, although other sui heredes could be disinherited as a class. The praetors also extended this rule to the disinheritance of eman­cipated children, although any money or property previously received by them had to be collated, as with the rules on intestacy considered above.

For the testator who had decided to disinherit his children, however, this restriction merely imposed a technical requirement that was easily overcome. A more important limitation on the freedom of testation was the querela inofficiosi testamenti (complaint of an undutiful will), introduced in the late Republic to deal with cases where the testator had unjustly failed to make appropriate provision in the will for his family. This was seen as a breach of family duty. The original basis for this action was that the testator must have been insane in making the will, though this was not its true basis — if the testator had been insane, the will would not be valid at all.

The querela could be brought only by certain classes of person, those being (in order) descendants, ascendants and siblings (though in the last case only if the person instituted as heir was a “base person”, such as one who had a disreputable profession). In addition, the querela could be brought only by someone who would have been entitled on intestacy, whether under the ius civile or through a praetorian remedy.

The rule as it developed was that provision in a will for an individual was regarded as sufficient if it amounted to a quarter of what that person would have received on intestacy, this being known as the legitima portio. This idea was received into Scots law, the “legitim” fund, in relation to which the testator is not entitled to test, being a third of the moveable estate if there was a surviving spouse, or a half if not.

The normal effect of a successful challenge under the querela was that the will was declared void. This would put the estate into intestacy, although this might be only partial intestacy if not all of a number of heirs were chal­lenged. That this might result from a minor miscalculation in the testator’s calculation of the value of his estate, or from a change in the value of the estate following the making of the will, was obviously a practical difficulty. Accordingly, Justinian amended the law. By his amendments, the querela was restricted to cases where the party raising the action had been entirely excluded from the will; where provision had been made which was in­adequate, he had only an action to make up the deficiency.

Codicils

A codicil was an informal attempt to dispose of property on death, without use of a will. These were first recognised under Augustus. Indeed, the impetus for their recognition was a request made in a codicil, written while its author (one Lentulus) on his deathbed while away in Africa, for Augustus himself to carry out afideicommissum (see below). He consulted the leading jurists of the day, who advised him that this was a valid method of proceed­ing, as it was difficult to comply with the strict requirements for the creation of wills while travelling.

Unlike wills, codicils could be made informally, although Theodosius II required seven witnesses. This was reduced to five by Justinian. However, the law made a distinction based on whether the codicil was confirmed by a will in proper form, either prospectively or retrospectively. If the will was not so confirmed, it could validly be used only to create a fideicommissum.

Fideicommissa

Fideicommissa were first recognised at the same time as codicils, although there was no necessary connection between the two. A fideicommissum was similar in form and function to a modern trust, in that it involved property being given to an heir or legatee subject to the condition that the property be used for the benefit of some third party. In origin, the fidei­commissum was not enforceable. The name merely refers to something that has been “committed to the faith” of a person. However, its enforcement was permitted from the reign of Augustus onwards.

The fideicommissum was an extremely flexible institution, allowing the evasion of many of the normal rules of succession. Thus, for example, we have seen that a foreigner was not allowed to benefit from a Roman will. Such a person could, though, be the beneficiary of a fideicommissum. Ac­cordingly, one wanting to make a legacy to a foreigner would simply avoid the prohibition by making a fideicommissum in his favour.

A very important use offideicommissa was for attempts to keep property within families. Because a fideicommissum could be used to impose fidei­commissa on persons not yet alive (called fideicommissary substitution), property could be handed down through the family, with each succes­sive heir being bound to pass it on to his eldest son. Such arrangements in favour of “uncertain persons” were prohibited by the emperor Hadrian in the second century ad, although allowed again by Justinian, but the number of generations for which similar arrangements could endure was restricted.

Essential Facts

• Roman law operated a system of universal succession. In this system, the heir of a deceased person was liable for the deceased’s debts.

• For intestate succession, the Twelve Tables imposed a system based on agnatic relationships, where the sui heredes, i.e. those becoming sui iuris on the death of the deceased, were the persons primarily entitled to be heirs.

• This system was modified by praetorian intervention recognising the claims of emancipated children and cognatic relations.

• The main requirement for a valid will was the appointment of an heir. The will might also contain specific legacies to individual legatees.

• The testator had for the most part unlimited powers of testation. However, this was limited by the need to disinherit sui heredes expressly, and more importantly by the right given to those who would be entitled on intestacy to challenge the will as an inofficiosum testamentum.

Essential Cases

Douglas v Douglas (1876) 4 R 105: a father left his whole estate to one of his two sons, excluding the other on the basis that adequate provision had previously been made for him through lifetime advances. The excluded son made a claim on the legitim fund. It was held, on the basis of the Roman principle of collatio bonorum, that the lifetime advances had to be collated. The result in this case was that the excluded son was entitled to nothing from the legitim fund.

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