Chapter 8 – Inheritance

8.1 Introduction
 Inheritance unlike acquisition property involved the transfer of the whole of a person’s property
 The ruinous inheritance – damnosa hereditas
 Principle of Universal Succession
 Choosing an heir in the late Empire – a person able to carry out the families’ religious duties - the
scara
 Duties of the heir – in brief

8.2 Better to Make a Will?

 What is intestacy?
 Purpose of Making a Will
 Reasons for intestation

8.3 Intestacy
Intestacy under the Twelve Tables

Sui heredes
 Those who became sui iuris, (‘of one's own right’) upon the death of the intestate
 Includes adopted children and a wife in manu; excludes emancipated children and a wife
 in free marriage
 Children (men and women) take in equal shares; stirpital representation applies
 (grandchildren inherit their deceased father’s share)

The Nearest Agnate

 e.g., brother and sister of the intestate
 ie. those who have a common male ancestor
 Usually, the brother or sister of the intestate
 Lex Voconia (169 BCE) restricted women agnates to sisters
 Stirpital (per stirpes: should a beneficiary predecease a testator, the beneficiary’s share
 of the inheritance goes to his heirs) representation does not apply
 Agnates of the same class took equally per capit

The Gens – i.e., the deceased clan

 ie. the deceased’s clan
 Redundant by the end of the Republic

Praetorian intervention

 Flaws of the intestacy laws of the Twelve tables were remedied/worst anomalies in the ius cilve
rules were mitigated
 Main Drawback – Constraint of agnatic relationship
 Deserving claimed could have bonorum possessio ('possession of property') as a result
The praetorian order of succession

a) Children (liberi)
 Unfairness of allowing both emancipated children and unemancipated children the same share
 a collatio bonorum ('a bringing together of property’)
 When emancipated children had children
b) Heirs-at-law (legitimi)
 This class comprised those who had a claim under the Twelve Tables, other than children
claiming as liberi. T
c) Cognates
 Consisting of blood relations within the sixth (Roman) degree of relationship
 No stipital representation
d) Husband and Wife
 A widow in a manus marriage since she was in the class of sui heredes under the Twelve Tables
 An ius civile heir would himself apply for bonorum possession

Operation of the bonorum possesio system (See other note)

 Bonorum possesio cum re (No civil heir or the praetor had intervened to change the existing
inequitable ruling – position couldn’t be lost) and sine re
 Hereditas petition (Inheritance petition)
 Exception doli (‘the defence of fraud’)
 What was the benefit of a bonorum possesio sine re?
 What determined whether a grant was made cum re or sine re

Classical legislation/Later modifictions

 S.C. Tertullianum c. AD 130

o To improve the position of mothers as regards the intestate estates of their children
o Mothers with the ius liberorum (three children or more) inherit from their children in
the absence of descendants, father or blood-brothers
o Sisters form a class and share 50-50 with the mother
 S.C. Orphitianum AD 178
o The rights of children to succeed on their mother's intestacy
 Senatus consulta - a decree of the ancient Roman senate
 Justinian’s Reforms
o Establishes a different order emphasising close cognatic relations including illegitimate
children
o Diminishes the relevance of agnatic succession
o Justinian introduced a new scheme of intestate succession (in Novellae enacted in AD
543 and 548)
o The order was as follows:
a) Descendants
b) Ascendants and full brothers and sisters
c) Brothers and sisters of the half-blood
d) Nearest other collaterals
e) Surviving spouse

For whom was succession law important?

The law of succession was far more important in Roman times than it is today, mostly owing to the legacy
significance of family and the young age of the general population. It was particularly essential for those
who had no obvious heirs, as the hierarchy of succession laid out in the Twelve Tables and by the
praetors provided a clear order regarding who would inherit upon the death of a paterfamilias. It is also
possible that the main purpose of the law was to prevent property from passing out of the family and to
allow men to provide for their wives, who would generally inherit nothing upon intestacy.

8.4 Making a Will

Capacity: Testamenti factio – Three discrete aspects

 Capacity: the testator had to have capacity to make the will (full age and sui iuris); a witness
required capacity to perform his function (normally a male of full age); and an heir or legatee
needed (ius capiendi: right to take under a will)
 Succession was strictly forbidden between Romans and peregrines; you had to be Roman to
dispose of your possessions mortis causa
 Capacity to make a will
o Wills could only be made by those who are sui iuris and of full age
o Exceptions to this
o Women’s capacity to make a will
o Sons-in-power could will their Peculium castrene – what they earned as soldiers
o Servi publici – public slaves, could will 50% of their peculium quasi castrense
 Capacity to witness a will
 Capacity to undertake a will
o Testamenti factio and ius capiendi – the right to actually undertake a will
o Slaves
o Women
o Religious beneficiaries
o Intestate personae – postumi – born after the making of a testators will
 Surprisingly, women, in particular married women, could make wills. However, they had to
compel their guardians to consent to their will (they could not deal with their own property
without this consent)
o First had to undergo a formal ceremony detaching themselves from their birth family
(abolished at Hadrian) to ensure that no male relative could come forward to claim that
he was entitled to the estate on intestacy because his rights as natural guardian had been
overlooked
o Having been released from family connections, she is free to leave her wealth as she
chooses
o Ius trium liberorum (right of three children): relieved from tutelage
o Children had no civil law rights of inheritance from their mothers (at civil law not related
due to mother being attached to birth family)

Ius capiendi

 leges caducariae: the lex Julia de maritandis ordinibus 18 BC and the lex Papia Poppaea AD 9
which penalized the unmarried and the child-less: unmarried men aged between twenty-five and
sixty, and unmarried women between twenty and fifty could take nothing under a will, while
married persons without children could take only a half (but only one-tenth under a will of their
spouse)
 Exceptions to the leges caducariae
 What happened to the gifts that were wholly or partially forfeited by the operation of the leges
caducariae?

Formalities

 Comitial will – made before the comitia curiata

 Will in procintu – Declaration before his comrades in proelium, i.e., before battle
 The mancipatory will
 o Could be written by someone else – an amanuensis, early practice of the mancipatory
will
o A “mock sale” to the familiae emptor (purchaser of household) before 5 witnesses and
sealed into wax tablets
o More convenient than comitial will and so very popular for centuries
o Used to sell a woman out of her family in order to enable her to make a will
o Was a means of conveyance: certain valuable objects (eg. land and slaves) could only be
transferred if this was performed
 The praetorian will – a formal statement before 7 witnesses (added measure of flexibility to
will-making in Rome) Drawbacks of the praetorian will & Advantages
 Wills in the late Empire – Tripartite will, Types of will
 Soldeirs’ will – Flexibility in will making, lex Falcidia and the querela procedure did not apply,
other people other than soldiers who could make such a will

Appointment of heirs

 Institution heredis – the appointment of an heir

 This could be done in three words – even in English law

Form of appointment

 Starting a will
 Dates or durations in the will were ignored

Plurality of heirs

 As many as heirs could be appointed as the testator wishes

 A man could not die partially testate, partially intestate

Conditional appointment

 Had to not be illegal, immoral and impossible

 What was the test of impossibility? If impossible – lex Aquilia
 Exception: Impossible condition for son – considered disherison

Substitution

 Heirs’ incapable or unwilling to inherit

 Substitutes were those who could not refuse
 Appointment of Substitutes
 Types of substitution
o A chain of representation
o Pupillary substitution
o ‘Common substitution’
o Double substitution
o Problems with pupillary substitution

8.5 Heirs
Types of Heir

Sui et necessarii heredes

 All those who became sui iuris on the testator’s death

 Necessarii – They could not refuse the inheritance if they were appointed
 What if the estate was insolvent?
  ius abstinendi – the praetor came to the rescue by giving sui the right to ‘abstain’ from the
inheritance although strictly remained the ius civile heirs

Necessari heredes

 Protection for necessarius

Extranei

 ‘Extraneous’ – not members of the testators household

 Could refuse
 Had to take the whole inheritance
 Cretio – Formal declaration
 Informal acceptance
 What was the position regarding the inheritance before the extraneus decided whether to accept?
Vacancy of inheritance

Other purposes of wills

 Main purpose was to appoint an heir

 Appoint tutors or guardians
 Manumit slaves
 Return property
 Pay debts
 Confer legacies
 Impose trusts
Debts

 Separatio bonorum for creditors – separation of estates

 Time Limit
 Beneficium inventorii
o An heir’s liability was confined to the assets of inheritance
o Strict time limits of the inventory

Benefits

 Ius civile remedy for the heir against anyone who is wrongfully in possession – hereditas
petition
 Bad faith, bona fide possessors

8.6 Legacies
Forms of Legacy

 One of the heir’s principal duties was to pay the legacies granted by the testator
 A vast and complex area of law with considerable social significance
 Legacies per vindicationem vests the property directly in legatee
o The right of the legatee to bring a vindication to obtain the property from the person in
possession
 Legacies per damnationem creates an obligation on the heir (very wide scope)
o Instruction by the testator to the heir to give the legacy to the legatee
o Not direct
o The legatee obtained a right in personam against the heir, enforceable by the actio ex
testamento (double damages if the heir denied liability unsuccessfully)
o Wide scope
 Eg. to pay a creditor or release a debtor
  Eg. to transfer a claim to a third party
 Eg. to acquire something and give it to another
 Eg. to leave a share of the estate (but not the whole)
 Other forms of legacy
o Legacy per praeceptionem – praecipto (let him take before) – before the inheritance
was distributed
o Legacy sinendi modo (in the permissive manner) – the heir was charged with the duty
to permit the legatee to take the thing for himself
o Legacies require the existence of a valid will
o Legacies can only be in favour of an existing person
 Incorrect form
o If A gave B a legacy in the form ‘do, lego’ of property belonging to C, the gift failed
o Senatus consultum – legacy should be construed in the most favorable form
o Three remedies at the option of a legatee; vindication, action ex testament, and action
hypothecaria

Time of enforcement

The lex Falcidia

 Republican legislation for limiting the size of legacies

 Statute entitled the heir to at least a quarter of the estate
 More than one heir – entitlement to the quarter of the estate between them (if directions had not
been given otherwise)
 Exceptions to the lex Falcidia
 Legacies are reduced proportionately to ensure this
 Indivisible legacies require the legatee to make a financial contribution

Special cases

 Conditional legacies: legatee had to satisfy the condition before taking the legacy (illegal,
immoral and impossible conditions ignored)
o Cautio Muciana – the legatee took the gift on promising to repay the legacy if the
condition was violated
 Legacy of an option (Legatum optionis) – legatee expressly given right ot choose from two or
more things
 Legacy of a thing of a kind (legatium generis)
 Legacy of part of the inheritance (legatum partitionis); heir and legatee enter agreement
specifiying their respective rights and liabilities
 Legacy of a debt (legatum debiti); legacy was a nullity as not received anything of value

8.7 Testamentary freedom

 Testator could not validly leave property to those who lacked capacity to take
 He could not validly impose a condition that was regarded as illegal, immoral, or impossible
 He could not appoint as an heir an “unascertained person” (someone who has not yet been born)
 The most important rules were those relating to exheredatio and the querela

Exheredatio (Disherison)

 The ius civile position - Originated to protect sui heredes

 Disherison did not imply bad relations
 Rules depended on the type of sui heredes (See other note)
  Rules relating to a postumi
 Disadvantage and advantage

Praetorian exheredatio

 Praetors introduced their own rules in an attempt to achieve consistency with their scheme of
intestacy
 All male sui had to be appointed or disinherited by name, but a general clause sufficed for other
sui
 If the will did not satisfy these requirements, the omitted sui could seek bonorum possessio
contra tabulas (possession of the estate contrary to the tablets (ie. the will)) from the praetor
 Certain persons who were not protected by the ius civile rules were included in the praetorian
scheme, notably emancipated children
 Bonorum possession contra tabulas
o Granted to protect the interests of liberi (agnatic descendants)
o Grandsons had to be disinherited by name
o If liberi are passed over, any outsiders instituted as heirs are denied their inheritance
and the liberi take their normal share
o Rules on collatio bonorum/dotis apply
o Express disinheritances are preserved
o A mixture of testate and intestate succession

Justinian’s reforms

Querela (See other note)

 A will can be challenged on the ground that the testator had failed in his duty
 When could the querela be bought?
o Disinheriting children of first wife
o Scope of querela widened
o Legitima portio – the lawful share
o Querela was a last resort
 Who could bring the querela?
o Those who would have succeeded under intestacy
o What if the complainant died before the querela was resolved?
 What were the consequences of querela?
o Like a gamble – if the complainant failed, it was claimed by the imperial treasury
o An important exception arose to partial testacy
o What was the effect of a successful querela on the testator’s inter vivos gifts e.g., a gift of
dowry?
 The querela under Justinian
o Justinian changed the rules of legitima portio as regards the testator’s children

8.8 Failure
 Failure of wills
o Papinian, Definitions, book 1: “A will is said to be not lawfully made, where the legal
solemnities have not been observed; or to be of no effect, when a son who was in his
father’s power has been passed over; or it is broken by another will under which there
can be an heir or by the addition of a suus heres to the agnatic family; or it is rendered
ineffectual by the nonacceptance of the inheritance.”
 Wills void ab inito – a will was iniustum – void when made
  Ineffectual and broken wills – ineffectual (irritum) or broken (ruptum) when a will failed
through lack of heirs, when the testator suffered loss of status, successful querela or revocation
by a subsequent Mancipatory will
 Failure of heirs
o Through change in status
o Refusal of the inheritance
o Predeceasing testator
o Partial lapse of heirs – the inheritance went to the remaining heirs (lapse means that the
person who was originally supposed to receive a gift won't be able to anymore)
o Ius accrescendi, i.e., the right of survivorship
o Leges caducariae – made important changes to the principle of Ius accrescendi

Failure of legacies

 Legacies void ab initio - given in incorrect form, or to a person lacking the capacity to take it, or
where the will itself was defective for lack of form or capacity
 Failure after making of the will
o Revocation of legacies
o Falsa demonstratio non nocet – a wrong description does not harm
o Failure of joint legacies

8.9 Codicils and trusts

 Codicils
o Informal attempts to dispose property
o Origination of codicils
o Confirmation of codicils
o Abolishment of the distinction by Justinian
 Trusts (fidecommissa)
o Originally an informal expression of desire wishing another to do something or to
dispose of property on death
o Trusts can survive the invalidity of the will and can be created on intestacy by a codicil
o Augustus allowed enforcement by the consuls (cognitio extraordinaria): a person could
not take an inheritance (or a legacy) without performing any trust that may have been
imposed on the gift – Not in TB in that section
 Origins
o Praeotor fideicommissarius – the popularity of trusts grew, necessitating the creation
under Claudius of a new magistracy
 Purpose of Trusts (a very flexible device)
o Employed to circumvent the strict ius civile rules on capacity to take; a Roman testator,
wishing to benefit a concubine or peregrine, would entrust property to his heir to pass it
to the intended beneficiary, thus avoiding the beach of the rules as to capacity
o Could attempt to free another’s slave by subjecting his own heir to a trust under which
the slave was to be bought and freed
o Why is it that trusts became popular?
o Vepasian – Trusts in favour of foreigner were eventually banned under this
o S.C. Pegasianum c. AD 73 – Prevented childless beneficiaries from taking under trusts
 Form
 Heir and beneficiary under the trust
o There cannot be a sequence of heirs: once an heir, always an heir (can be substitution of
heirs) - But there can be a trust of inheritance
o Would you accept an inheritance if little or no benefit was to come your way?
o SC Trebellianum AD 56 – Reduced the administrative involvement of the heir - the heir
can vest the entire estate in the beneficiary, ie. a settlement becomes possible
o Classical lawyers resisted this development
 SC Pegasianum – Applied the lex Falcidia to trusts and also prevented childless
beneficiaries from taking under trusts
 Hadrian required beneficiaries to be existing persons; banned trusts in favour of
“unascertained persons”
o Justinians Reforms