8.8 Failure

We are concerned here with the failure of wills, heirs, and legacies.

8.8.1 Failure of wills

(D.28.3.)

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 sous heres to the agnatic family; or it is rendered ineffectual by the nonaccep­tance of the inheritance.

As Papinian's text demonstrates, wills could fail for a variety of reasons arising either at the time the will was made or subsequently. Whatever the cause of failure, an intestacy would normally result.

8.8.1.1 Wills void ab initio

A will was iiiitisliini, i.e. void when made, if the testator lacked the capacity to make it, or if the will was made without due form. The capacity and formalities for mak­ing wills have been considered previously.

8.8.1.2 Ineffectual and broken wills

Wills could fail because of events occurring after the making of the will. The jurists described such situations as ones where the will was 'ineffectual' (irrituin} or 'bro­ken' (ruptuinl, although little appears to have hung on the distinction. A will was ineffectual in two situations—when it failed through lack of heirs, or when the testator suffered loss of status:

Ulpian, Sabinas, book 10: A will is rendered ineffectual whenever something has happened to the testator himself, let us say, if he loses citizenship through falling into slavery, for example, by being captured by the enemy or if, being more than twenty years old, he has allowed him­self to be sold with a view to performing an act or sharing in the price. (I).28.3.6.5.)

However, it will be recalled that the will of a Roman soldier who died in captivity was given effect if the will had been made before his capture (see 4.3.3.3).

A will was regarded as broken if, for example, there was a successful querela or if the will was revoked. As regards the latter case, the basic ins civile rule was that revo­cation of a mancjpatory will was possible, only by a subsequent mancipatory will.

The revocation occurred even if the subsequent will failed, providing that it had been validly made. However, the praetors were prepared to recognize alternative methods of revocation, both for mancipatory and praetorian wills, e.g. destroying the whole will, erasing the names of the heirs, or tearing off the seals. Whatever the form of revocation, it would be ineffective unless the testator had a clear intention to revoke. One who had lost his reason could not revoke except in a lucid interval. In the fifth century AD, additional methods of revocation were introduced. It was decreed that a later will (even if not validly made) revoked an earlier one, providing that the following conditions were satisfied: the later will must have been witnessed by at least five witnesses; and the heirs under it must have been entitled to take on intestacy, but not those under the earlier will. It was also provided that a will should be automatically revoked by the lapse of ten years after its making. But lapse of time did no t revoke a will under Justinian unless the testator made a formal declaration of revocation.

8.8.2 Failure of heirs

An heir might fail to take for a variety of reasons, e.g. through change of status, or by refusing the inheritance (in the case of an extraneus), or by predeceasing the tes­tator. If the only heir or all the heirs failed to take, and their substitutes did likewise, the will failed. But what if there was a partial lapse of heirs? The basic rule in the Republic was that the lapsed share of the inheritance went to the remaining heirs by ius accrescendi, i.e. the right of survivorship. Legacies that were charged specifi­cally on the lapsed share of the inheritance failed. The heir who eventually took the share was not bound to pay such legacies; he could keep them:

Celsus, Digest, book 36: If my son is heir and there accrues to him the share of a person on whom a legacy had been charged by name, he will not deliver the legacy, which he takes by ancient right.

The rule was changed in the late classical period, the heir becoming liable to pay legacies charged on lapsed shares that passed to him.

Augustus's leges caducariae made important changes to the principle of ius accres­cendi as regards the lapsed shares of an inheritance, whatever the cause of the lapse. As a general rule, the share passed to any remaining heirs with children; if none then to any legatees with children; if none then to the Treasury (see further 8.4.1.4). In the later Empire the caduciary laws were gradually abolished, Justinian return­ing to the original rule—the ius accrescendi applied irrespective of the existence of children.

8.8.3 Failure of legacies

The various grounds on which legacies failed can usefully be classified, as in the case of wills, according to the type of failure.

8.8.3.1 Legacies void ab initio

A legacy would fail ab initio if, for example, it was given in the incorrect form (at least in pre-classical law), or to a person lacking the capacity to take it, or where the will itself was defective for lack of form or capacity. Could such a legacy be validated by events subsequent to the making of the will? It seems not, according to a rule of construction known as the regula Catoniana:

Celsus, Digest, book 35·. The Catonian Rule is as follows: 'Any legacy which would have been invalid if the testator had died at the time of the making of the wifi is invalid whenever he dies'. (D.34.7.1pr.)

8.8.3.2 Failure after the making of the will

Even if a legacy was validly made, it could fail on various grounds arising after the time of testation. For example, the legatee could predecease the testator or might refuse to take the legacy. Or the will itself might fail for reasons arising after testa­tion. Moreover, a legacy could fail through forfeiture if the legatee was considered unworthy to take it, in which case it was usually confiscated by the Treasury—a potential source of easy revenue for unscrupulous Emperors.

Legacies failed through revocation, which could be either express (e.g. by use of formal words in a subsequent will) or implied. The latter form of revocation occurred, for example, in circumstances similar to ademption in the modern English law of succession, e.g. where the testator disposed of the subject matter of the legacy prior to his death. And legacies could be impliedly revoked if enmity arose between testator and legatee:

Ulpian, Lex Julia et Papia, book 14: The preferable view is that if mortal hatred arises between legatee and testator and it becomes probable that the testator did not wish any legacy... to be executed in favor of the person to whom it was appointed or left, the legacy cannot be claimed by the latter. (D.34.9.9pr.)

A legacy did not fail if there was a misdescription of the subject matter of the gift or of the legatee, providing that the description was sufficient to identify them—falsa demonstrate) non nocet ('a wrong description does not harm')—a rule still operative in English law. Nor did a legacy fail simply because the reason for the gift was incor­rectly stated:

Papinian, Questions, book 18: The truer view is that an incorrect motivation is no impediment to a legacy because the reason for a bequest is no part of the bequest... (D.35.1.72.6.)

In pre-classical law, failed legacies went to the heirs equally unless a legacy had been specifically charged on one heir, in which case he alone benefited, Augustus changed the destination of lapsed legacies through his leges caducarlae, which applied to failed legacies as well as failed heirs. Justinian restored the pre-Augustus rules. As regards the failure of joint legacies, the rules were complicated by distinc­tions made as to the type of joint legacy. For example, if a share failed of a joint legacy per vindication em, it went to the other co-legatees; but to the heirs in the case of a legacy per damnationem. These rules were later subjected to Augustus's leges caducariae, Justinian simplified the position by decreeing that, as a general rule, failed shares of joint legacies went to co-legatees.