Querela Inofficiosi Testamenti

As already noted, in principle a testator was free to dispose of his estate as he saw fit and could disinherit his closest kin as long as he observed the requirements of exheredatio.

However, from an early period it was recognized that such complete freedom of testation might lead to abuse. Therefore, to limit the likelihood that members of the testator’s immediate family would be disinherited for reasons that were not valid, a special legal remedy known as querela inofficiosi testamenti (‘the objection against the unduteous will’) was introduced during the later Republic. The underlying principle acknowledged that it was unfair and unduteous of a testator to favour outsiders to the detriment of his own family in the direct line.^{^[1100]}Thus, members of the family who thought that they had been unjustly disinherited could challenge the will in a special court on the grounds that such a will was an infringement of the testator’s natural duties towards his family and relatives. If the complainant succeeded in his querela, the will was declared invalid (testamentum rescissum) on the basis of the fiction that the testator must have been insane at the time of creating the will^{^[1101]} and the estate then devolved in accordance with the rules of intestate succession.^{^[1102]} It should be noted that a querela could only be utilized if there was no other legal remedy available.^{^[1103]} This legal challenge had to be instigated within 5 years after the appointed heirs had entered on the inheritance and the relevant action had to be directed against such heirs themselves.href="#_ftn1104" name="_ftnref1104" title="">^{^[1104]}

Originally, the querela inofficiosi testamenti could be brought only by the descendants of the testator or, where there were none, by his ascendants. In late classical law, brothers and sisters could also institute the querela but only where base persons or persons of ill repute (personae turpes) had been preferred to them as heirs.^{^[1105]} Initially, the querela could only be relied upon if the family members concerned had been disinherited without a good reason.

In classical law the rule developed that they could utilize this remedy if they received less than a quarter of the amount they would have received had the testator died intestate.^{^[1106]} This quarter was referred to as pars legitima or portio legitima.^{^[1107]} A tendency emerged in post- classical law to keep the will effective as far as possible rather than to invalidate it, and the querela had to make way for an action to compel the testamentary heirs to pay out the statutory share in full (actio ad supplendam legitimam).^{^[1108]} The effect of this action was to reduce the amount transferred to the appointed heirs, but the will otherwise remained intact.^{^[1109]} Justinian later increased the portio legitima to one- third of the intestate portion where the testator left up to four children, and to one- half of the intestate portion where there were more children.^{^[1110]} Furthermore, he specified a number of just grounds for disherison thus resolving much of the uncertainty surrounding exheredatio.

5.3.9

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

Querela Inofficiosi Testamenti

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