Institution of Heirs

For a will to be valid it was essential that one or more persons should be instituted as heir (heredis institutio). Originally, the institution of an heir or heirs involved a process of certain prescribed formal words inserted at the head of the will.^{^[1082]}However, in later law such formalities became obsolete and any words could be used as long as the testator’s intention was clearly expressed.^{^[1083]}

As previously noted, in Roman law the heir was a successor under universal title (titulo universali) and this meant that he succeeded to all the patrimonial rights and liabilities of the deceased.

Consequently, an heir could not be appointed to receive a specific object or objects.^{^[1084]} The testator could institute one heir for the whole estate or several heirs. In the latter case, he could allot equal or unequal portions to the heirs as he wished but if he did not expressly indicate the portion each heir should receive, the estate was divided into equal shares among them. Furthermore, the testator had to dispose of the whole inheritance, according to the principle that no one was permitted to die partly testate and partly intestate.^{^[1085]} Thus, if an heir was instituted to a one-half fraction of the estate and no disposition was made of the other half he inherited the entire estate as sole heir. Similarly, if only a portion of the estate was divided among several heirs or if one or more of the instituted heirs could not or did not wish to inherit, the remaining portion of the estate accrued to the heirs who inherited in proportion to their shares.^{^[1086]} The institution of an heir could be made unconditionally (pure), or subject to a suspensive condition,^{^[1087]} term (i.e. a period of time) or restriction (modus).^{^[1088]} However, an heir could not be validly instituted subject to a resolutive condition or term, in accordance with the rule that a person who had once been instituted as an heir never ceased to be heir (semel heres, semper heres).^{^[1089]}

New Roman">Finally, it should be noted that in relation to the interpretation of a will the usual rules pertaining to duress, fraud and mistake were applicable. In the case of fraud or duress by a designated heir, the will was usually declared null and void and the testator’s estate forfeited to the state.^{^[1090]} In general, mistake (error) did not affect the validity of a will but a number of exceptions were recognized under certain circumstances.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Institution of Heirs

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