Better to make a will?

Property was normally inherited either under a will or as the result of an intestacy. The latter occurred where the deceased had died without making a will, or where he had made a will that was not operative.

The frequency of will-making in Roman society has been much debated. There were important reasons why a Roman citizen would wish to make a will—to choose an heir, to provide for his spouse, children, and other family members, and to reward friends, and those who had performed services for him. The making of a will showed a proper sense of responsibility; putting one's affairs in good order was expected of a paterfamilias, at least among Rome's wealthier and aristocratic classes. Moreover, wills offered testators a means of ingratiating themselves and

their families with the powerful. Gifts to important citizens, politicians, and gener­als were frequent; and some Emperors did rather well, judging by the legacies show­ered on Augustus. Rich men without families were the particular object of legacy hunters. Public interest would be aroused by the death of a rich bachelor, his friends anxious to know how he had distributed his fortune, if they did not know already. Furthermore, the will offered a testator an opportunity to cast judgment—'the last judgment'-—on his friends, family, enemies, the Emperor even. Augustus took a particular interest in the wills of leading citizens, since such wills were regarded as evidence of what the deceased really believed, however much he had hitherto flattered the Emperor. Moreover, a will could be used to list one's achievements (Augustus took full advantage) or as a means of controlling the testator's family; e.g. unruly children could be threatened with disherison, i.e. exclusion from the will. For a vivid account of the motivation of Roman testators and the process of will­making, see Champlin, E., Filial Judgments: Duty and Emotion in Roman Wills, 200 B.C.-A.D.

There were, in addition, technical reasons why a Roman citizen might prefer to die testate rather than intestate. The application of the law of intestacy could lead to such curious results that a desire to avoid intestacy was perfectly understandable. It has even been suggested that there was a 'horror' of intestacy in Roman society, but that view is an exaggeration. Indeed, some citizens would find the prospect of making a will somewhat uninviting owing to the complexity of the undertaking and the formalities that had to be satisfied (for a more nuanced assessment of this, see Jakab, E. 'Inheritance', in OHRLS, 498-509, at 499).

Despite the variety of reasons for testation, it cannot be maintained that will­making was the norm in the Roman world. Before the extension of citizenship in the Empire, many inhabitants of the Roman world lacked testamenti factio (the right to make a will under Roman law), since the population consisted of large numbers of non-citizens, though it has to be assumed that these non-citizens could still make wills according to their own laws. Even among citizens it is doubtful whether will­making was extensive (see Daube, D., 'The Preponderance of Intestacy in Rome' (1964-5) 39 Tulane LR, 253-62; Cherry, D., 'Intestacy and the Roman Poor' (1996) 64 TR, 155-72). It is true that juristic discussion in the Digest of problems arising from wills overwhelmingly exceeds that devoted to intestacy, but this is hardly con­clusive; the law relating to wills was far more extensive and complex than the law of intestacy. Furthermore, some citizens were restricted from making wills, while others would have little or nothing to leave. The latter constituted the bulk of the population, such were the economic realities: 'Why or how would the poor chaps who slept under the bridges of the Tiber make a will? They had nothing to make a will about, nor the wherewithal to engage the cheapest lawyer to draw it up' (Daube, Roman Law, 71 ft.).

Roman writers occasionally give the impression of Rome as a will-obsessed soci­ety in which the witnessing of wills was one of the tasks of daily life. But most citi­zens of Rome would not have found the witnessing of wills to be one of life's daily concerns. No doubt, will-making was the norm, for the Roman propertied classes. No doubt, some poor citizens made wills. But the majority of citizens probably died intestate, it seems, however, that there was a keen interest taken in the operation of the law of inheritance. Disputes about wills were a staple diet of civil litigation and aroused considerable public comment. Justinian's compilers devoted a great deal of space to the law of inheritance—about one-quarter of the Digest and the Institutes—although this cannot be taken as conclusive evidence of the prevalence of inheritance cases in practice (see Johnston, 'Succession', 201-2).

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