Testate Succession: Making a Will

A will can be defined briefly as a written expression of how the testator's estate should be dealt with on his or her death. When writing is to be interpreted and applied, there is always the possibility of ambiguity and uncertainty as to the writer's actual intentions.

The difficulty is particularly acute with wills as, by the time the will needs to be interpreted, the testator is no longer available to indicate what was intended. Two passages from the Codex may be given as illustration. In one, dated AD 223,^[1760] we are told of a case where a cavalryman named Alexander had named one lulianus, his slave, as his heir, with one Vitalis as substitute if lulianus was unable or unwilling to accept the inheritance. The idea was that Iulianus would be freed in order to be able to do this. It turned out that lulianus was actually co-owned along with another person, called Zoilus. The inheritance was claimed by Vitalis and, presum­ably, Zoilus. The decision given was that the outcome depended on the deceased’s intentions and whether he was aware that lulianus was co-owned. How would these issues be decided? We are not told, but clearly there would have to be some form of enquiry into the deceased’s intentions and his state of knowledge. This is not particularly helpful, but it is unavoidable if extrinsic evidence is allowed.

The second example — many others could be chosen — is a decision of Jus­tinian from AD 531.^[1761] This was concerned with the situation where a man, not called Plotius, appoints an heir in the following terms: ‘let Sempronius be the heir of Plotius’.

(1) Capacity

The jurist Papinian tells us that the capacity to make a will was a matter of public rather than private law.^[1764] We have seen^{[1765] [1766] that testamentifactio — the right to make a will according to Roman law — was one of the rights comprised in Roman citizenship. However, the issue is perhaps better seen as a mix of public and private law, for a per­son’s ability to make a valid will depended on matters other than citizenship status.}

First, only a sui iuris⁷⁵ person could make a valid will.^{[1767] [1768] This makes sense, as only such a person could own any property anyway, other than peculium castrense and quasi castrense50 for which an exception was made. To make a valid will, the testator had to be of sound mind. An insane person could not make a valid will. The same was true of a person who had been interdicted from managing his own property.[1769] Soundness in body was not required, however.[1770] This is hardly surprising, given that those most likely to be making wills are those faced with the approach of death. It is at first sight surprising, then, that those who were deaf or dumb were unable to make valid wills.[1771] As neither deafness nor dumb­ness implies any mental deficiency, the most likely explanation for this restriction is that the standard procedure for making a will involved spoken words, which would pose obvious problems for those lacking the power of speech or hearing.[1772] That this restriction was not based on any intrinsic lack of capacity is suggested by the fact that a soldier who had become deaf or dumb, but who had not yet been discharged from the army, could make a soldier's will, which (as we shall see below) did not involve the same formalities.[1773] The same is suggested by the fact that a deaf or dumb person could seek imperial authorisation to make a valid will.[1774] Finally, as we saw in Chapter 5, there was a particular restriction on women making wills.[1775] Until this procedure was abolished by Hadrian,[1776] a woman wishing to make a will had to go through coemptio, a kind of fictional self­sale, probably to terminate her agnatic relationships.[1777]}

Those capable of being witnesses to a will were, broadly speaking, the same as those capable of making a valid will, except that they had to be male.^[1778] The right to take under a will (the ius capiendi), however, was subject to various restrictions.

(2) Types of Will

(a) Early Wills

In early times, the common form of will was the comitial will.

The requirements of the comitial will would obviously pose difficulty for soldiers on active service. For this reason, soldiers were permitted to make valid wills without the normal formalities. The soldier's will, known as the will in procinctu (‘in readiness for battle'), was also obsolete before the classical period.^[1788]

(b) Wills in Classical Law

Although the will in procinctu fell out of use before the classical period, a new form of soldier's will, along the same lines, later arose. This too allowed soldiers^[1789] to make valid wills informally. Ulpian tells us that this was first allowed by Julius Caesar, in the first century BC, as a concession. In the Empire, it was allowed by the emperor Titus and by successive emperors thereafter.^[1790]

The soldier's will, though, was obviously of limited application. For those in civilian life, by the classical period a new form of will, more convenient than the comitial will, had developed. This new form was a development of the proce­dure called mancipatio, used for transferring certain types of property. As we have seen,^[1791] mancipatio involved transferor and transferee coming together with five witnesses, and also an additional person, called the libripens (‘scale-holder'), who held a set of scales. The transfer would be formally declared by the parties, and then the scales would be struck with a piece of bronze, representing the weighing out of the price.

All wills suffer from the difficulty that, when they come to be applied, the person who made them is no longer available to clarify any doubts as to what was intended. This would inevitably be especially true of a will made orally. Understandably, therefore, it became normal practice to record the will in writ­ing on wax tablets, signed and sealed by the witnesses, libripens and familiae emptor (though not by the testator, unlike the position in modern law). This was initially done simply to provide evidence of the making of the will and of its contents, the will itself being constituted by the mancipatio ceremony. However, it came to be the case that the praetor would recognise a will recorded on tablets as having been validly made, even without the accompanying mancipatio.^{[1793] [1794] This was done by granting bonorum possessio100 to the person or persons benefiting from the will, initially sine re but later cum re. This was the praetorian will.}

A valid praetorian will had to be signed and sealed as a single continuous act. This does not necessary mean, though, that each step had to be taken immedi­ately after the previous one. Instead, this requirement meant that the process should not be interrupted by any act unconnected to the making of the will: ‘A will should be made by one continuous act. By one continuous act is meant that no act unrelated to the will should intervene.'^{[1795] [1796] The reasoning is strikingly similar to that in the modern Scots case Thomson v Clarkson’s Trustees.100 This was concerned with the validity of the signatures of two witnesses to a will. Under the}

law at that time, the witness had to sign ‘at the time' that the testator acknowl­edged his or her signature.^[1797] The current law requires this to be done as ‘one continuous process',^[1798] wording itself very similar to the Roman rule. In Thom­son, the witnesses, who were two solicitors' clerks, visited the testator at home in Inverkeithing. They heard her acknowledge her signature. They then took the will back to their office in Dunfermline (a distance of a little over four miles), where they signed as witnesses between thirty and forty-five minutes after hear­ing the acknowledgement. The court held that this was sufficient in the circum­stances to count as taking place ‘at the time' of the acknowledgement. The Lord Justice-Clerk said:

I hold that where a signature is acknowledged, and the deed is at once conveyed by the witnesses to the lawyer's office, and there signed by them within half-an-hour or so, and without the deed ever being out of their hands, or any other business being done by them in the interval, that such signature fulfils the statutory requirement of being ‘at the time.' Such a case seems to me to be quite different from one in which there has been an interval in a true sense, where the piece of business has been set aside, other things done, and then the attestation of the witnesses taken up of new, and at a different time.^[1799]

No Roman authority is cited in the case, and so it cannot be conclusively shown that the position taken was inspired by Roman law (or indeed that a Roman jurist or court would take the same view on the facts of the case). However, it is at least plausible to suspect that the Lord Justice-Clerk had the Roman rule in mind at some level. After all, as with all Court of Session judges, the Lord Justice-Clerk was first an advocate, and so required to be educated in Roman law.^[1800]

There seems to have been some doubt among the Roman jurists as to whether a person asked to write the will on behalf of another person, perhaps someone unable to write or lacking the necessary expertise to write a valid will, could also act as a witness to the will, as shown in this passage:

Domitius Labeo to his friend Celsus, greetings. I ask, whether someone may be added to the number of witnesses to a will, who has been asked to write the will. luventius Celsus to his friend Labeo, greetings. I do not understand what it is you are consulting me about, or else your consultation is very stupid. It is more than ridiculous to doubt whether someone may be a witness to a will because he has written the will.^[1801]

The obvious impatience here is fairly surprising, as the point is by no means self-evident.

(c) Wills in Post-Classical Law

There was considerable development of the law on wills in the post-classical period. We see oral wills being recognised, where the testamentary intentions of a person, expressed in front of seven witnesses, were given effect.^[1802] A will would also be considered valid if registered in the archives of the state or a court, without witnesses other than the public officials involved. This was the so-called public will.^[1803] In addition, from the time of Constantine, the holograph will (i.e. one made in the testator’s own handwriting, without witnesses) was recognised as valid insofar as it benefited the testator’s own children, though the precise details varied over time.^[1804]

However, the main form of will in the post-classical period came to be the so- called tripartite will (testamentum tripertitum), introduced in AD 439.^[1805] This name is somewhat misleading, as it was not the will itself that was in three parts. Instead, the reason for the name is that the rules for these wills were taken from three sources. From the civil law came the need for the execution of the will to take place as one continuous process; from the praetorian law came the need for seven witnesses to seal the will; and finally there was an element of imperial innovation, by which the testator had to sign the will.

(3) Institution of Heir

(a) Requirements for Institution of Heir

The main function of a will was to institute, or appoint, an heir. Indeed, the appointment of an heir was the only thing that was actually necessary, in terms of content, for a valid will. This was subject to the exception that any sui heredes that were not being appointed heir had to be disinherited expressly.^[1806] Otherwise, therefore, a will could thus be very short, and could even be three words, for example Titius heres esto (‘Titius be heir’).^[1807] The institution of the heir had to be expressed as an instruction, as for example ‘Titius be heir’ or ‘I order that Titius be heir’. To say ‘I want Titius to be heir’ would not be sufficient. Gaius tells us that forms such as ‘I appoint Titius as heir’ or ‘I make Titius heir’ were considered to be of doubtful validity.^[1808] Such forms were therefore best avoided, until the emperor Constantine provided that any words would do as long as the intention was clear.^[1809] If there was further content, the appointment of the heir had to come first. Anything appearing before the appointment of the heir was disregarded, although, as an exception to this, a rescript of the emperor Trajan allowed the disinheritance of someone by name to come before the appointment of the heir.^[1810]

It is important to understand that the heir was not necessarily the main benefi­ciary of the will. Indeed, legacies to others might exhaust the entire estate, which aside from any other consideration might make persons instituted as heirs reluc­tant to act. In the Republic, various statutes attempted to protect the position of the heir.^[1811] In the early second century BC, the lex Furia testamentaria restricted the size of individual legacies to non-family members. In 168 BC, the lex Voconia restricted legacies by testators in the first census class, that is the wealthiest citi­zens. Of more enduring importance was the lex Falcidia of 40 BC, which entitled the heir to at least a quarter of the net value of the testator’s estate. Where neces­sary, legacies were reduced pro rata to achieve this. This did much to make the role of heir more attractive. However, the fundamental idea of universal succession was retained, and the lex Falcidia would be of no use if the testator was insolvent.

(b) Conditional Institutions

An heir could be instituted subject to conditions. For example, a person might be instituted as heir subject to a requirement to free a particular slave or to build a memorial to the testator. If the condition was not fulfilled, the institution of the heir failed. A condition that was illegal, immoral or impossible^[1812] was invalid.^[1813] Such a condition was simply ignored, and the institution treated as unconditional.^[1814] If the person instituted as heir was willing to fulfil the condition, but was prevented by a third party’s refusal to co-operate, the condition was treated as having been fulfilled.^[1815]

(c) Substitution

The person instituted as heir might predecease the testator or might refuse the inheritance. To prevent the whole will failing as a result, it was common to insti­tute someone as a substitute heir, to take if the principal heir did not.^[1816] This was known as vulgar substitution. Related to it was pupillary substitution.^[1817] Pupillary substitution was used when a paterfamilias instituted his own prepubescent child^[1818] as heir. The testator would be concerned (understandably, in an age of high child mortality) that the heir might then die before reaching the age of puberty. As the child could not have made a valid will, the result would be that the property would pass from the child according to the rules of intestacy. This result might not be welcome. Accordingly, the practice developed in such cases of appointing a sub­stitute to take if the child inherited but then died before reaching puberty. This is different from vulgar substitution in that, with pupillary substitution, the intended heir does first inherit, and determines who should inherit from the child heir. In effect, therefore, a pupillary substitution amounts to making a will for the child as well as for the testator.^[1819] By analogy with pupillary substitution, Justinian allowed the same to be done if the testator had only insane descendants. The substitution would only operate if the heir never became sane.^[1820]

(4) Revocation of a Will

A testator could of course change his or her mind about the terms of the will. However, a will was not revoked simply by contrary intention on the part of the testator, and in principle this was true even if the testator destroyed the will.^[1821] Strictly speaking, the will was only revoked if the testator made a new will^[1822] or experienced capitis deminutio (status loss),^[1823] or else, for reasons that we shall see below, a child was born who was a suus heres of the testator. However, if there was a clear indication of a change of views, for example where the testator destroyed or defaced the will, the praetor would give bonorum possessio^[1824] to the person who would have been heir but for the will.^[1825]

In the post-classical period, further grounds of revocation developed. In the fifth century, a rule was introduced that a will was automatically revoked after ten years.^[1826] To avoid intestacy, the testator would then need to make a new will, even if his or her intentions had not changed. This rule was abolished by Justinian, who instead allowed revocation by making a new will or by making a declaration before three witnesses or recording such a declaration in a public record.^[1827]

D.