Substitutions

Substitutions were a special case of conditional institutions. A common sub­stitute (substitutus vulgaris) could be appointed in a will so that he could take the estate in case the primary heir did not accept the inheritance or died prior to the testator.

Since the son might also die before the father, a testament could include both a common substitution, appointing an heir in case the son died prior to the father, and a pupillary substitution, appointing an heir of the son if he does not reach puberty. Both appointments of substitutes could even go to the same person. So, for instance: “My son Titius shall be my heir. If my son

shall not be my heir [because he dies] or shall be my heir and die before reaching puberty, let Seius be my heir” (Gaius 1.79).

Usually, the pupillary substitution was written on a separate tablet of the father’s testament that would be opened only if the child died before puberty.

Following the model of pupillary substitution, Justinian introduced a special substitution for insane descendants who, by reason of their insanity, were not able to make a will. Substitutes could be appointed by any ascendant, not just by the father, and the appointment was restricted to the descendants or brothers and sisters of the insane person (Inst. 2.16.1).

The querela inofficiosi testamenti

Important economic and social changes at the end of the Republic changed people’s understanding of the purpose of a will. The custom to institute a single heir to take over the family farm was well founded and meaningful in an agrarian society governed by agricultural interests, but not in a society focused on commerce and economic relations. The meaning of disinheritance also shifted. In an agrarian society, disinheritance was a way to avoid the division of family land and to promote continuity of family farming. But at the end of the Republic, disinheritance was regarded as a means of punishing some relatives. Consequently, wills containing disinheritance without good reasons were considered “undutiful” (testamentum inofficiosum), i.e., wills against the moral standards of behavior expected of Roman citizens. From the middle of the first century bce, the centumviral court, in charge of disputes concerning inheritances, allowed some close relatives to bring complaints against undutiful and irresponsible testators’ wills (querela inofficiosi testamenti).

The querela protected the testator’s closest relatives against disinheritance without justification. Through the querela, these relatives - including descen­dants, parents (and ascendants), and siblings - asked for the will to be rescinded on the ground that the testator’s mind had been disturbed when he made his will (Inst.

Justinian recognized the right of the closest relatives to be appointed heirs rather than simply receive a value of the estate. He provided aggrieved relatives with an action (actio ad supplendam legitimam) for supplementing their share

The law of succession 175 when they did not receive the minimum amount (portio legitima). That action, however, affected neither the validity of a will nor any benefit under it. Justinian also increased the minimum amount available to these relatives to one-third of the intestate portion when the testator left up to four children, and to one-half if there were more children.

Hereditatis petitio and interdictum quorum bonorum

The civil heir had the rei vindicatio to make specific claims against possessors either in good or bad faith, as well as other ordinary actions to enforce con­tracts and obligations attending the estate. However, when the civil heir, either testamentary or intestate, wanted to claim the whole estate (or his share) against a possessor who contested his status as a true heir, the heir had to bring a hereditatis petitio. This was an action in rem, based on civil law, similar in many ways to the rei vindicatio. Just as the plaintiff of the rei vin­dicatio had to prove his status as owner, so the plaintiff of the hereditatis petitio had to prove his status as civil heir.

Since the hereditatis petitio was not available to the praetorian possessor of the estate if he was not also a civil heir, the praetor granted him the interdict quorum bonorum against anyone who held things belonging to the inheritance. The evidentiary advantages of the interdict were so significant that even civil heirs used to seek praetorian possession of the estate in order to avoid having to prove their status as heirs. On the other hand, the disadvantages were also obvious: the interdict could be used only to demand physical objects of the estate, and only against someone claiming to possess the estate as heir - not against the possessor who claimed to have bought the thing in question.