Succession

The Roman law of inheritance conceptually formed part of the law of 'things'. To the Roman legal mind, the law of inheritance was concerned with the transfer of things in a broad sense, either through a valid will or, in the absence of a valid will, through specific legal rules which were designed to benefit the remaining family of the deceased.

Given this natural divide within the law of inheritance between testamentary and intestate succession, it seems prudent to start with the law of testate succession, that is where a valid will existed. Let us take the following example of a will from c. 142 CE.

Antonius Silvanus, eques... made a will. Let Marcus Antonius Satrianus, my son, be my heir of all my property (military and domestic). Let all other parties be disinherited. Let him accept my inheritance in the next 100 days; should he not do so, let him be disinherited. Then, in the next degree, let Antonius... my brother be my heir and let him accept my inheritance in the next 60 days. I give and legate to him, if he does not accept my inheritance, 750 silver denarii. I hereby appoint Antonia Thermutha the mother of my above-mentioned heir as general agent (procurator) of all of my military goods with a view to collect and recover all of my property. [The testator then appoints one of his military colleagues as the tutor of his son and endows him with an amount of money.

The first point to mention about Roman wills was that they were highly formal documents which had to be drawn up in accordance with the formalities described by law. Physically, a will consisted of a papyrus scroll or a wax tablet which was sealed after the testator had completed it and which was then kept securely along with the other important documents of the testator, usually in the strongbox which was located in the home. Upon the death of the testator, the will was ceremonially unsealed and the wishes of the testator made known to the family. Usually, as can be seen from the example above, one person inherited the bulk of the estate (both assets and debts) and the rest of the family was explicitly disinherited. This person was also usually tasked with fulfilling the other wishes of the testator as expressed in the will such as the payment of legacies.

Anyone who had Roman citizenship could make a will once they had reached the age of puberty, but certain classes of people alieni iuris (esp. minors and women) needed further authority before they could validly make a will (here the general rules of guardianship and tutelage applied). Gaius states the following:

Inst.Gai.II.114. And so, if we are asking whether a will is valid, we must first of all consider whether the person who made it had the capacity to make a will... [translation: Gordon/Robinson]

Inst.Gai.II.118. Moreover, notice that if a woman under guardianship makes a will, she should have her guardian's authorisation; otherwise the will is not effective by state law.... [translation: Gordon/Robinson]

Of course, after 212 CE, any free citizen in the Roman Empire could make a will according to Roman law, although it is clear from parts of the Empire where sophisticated legal orders existed prior to Roman occupation that local inhabitants often made wills according to their own laws rather than Roman law.

We will explain these rules using the example of a Roman will provided above. The will contained the final wishes of the testator as to what should happen to his property after his death. It was therefore very important that it should contain no ambiguities and that the wishes of the testator could be clearly interpreted from the will (since he or she could not be asked what they had meant). This may explain why the Roman jurists placed such emphasis on the formalities attached to the writing, sealing and eventual opening of the will. By the time the will above was drafted, it had become customary to create a written will (the older procedure dating from the Twelve Tables permitted a verbal will in front of witnesses using the ritual of mancipatio, see Inst.Gai.II.104). Gaius tells us about the form of will which existed during his time:

Inst.Gai.II.103.... But the present procedure is quite different from the former practice.... Nowadays, however, one person is appointed heir by the will, and the legacies are charged on him:... [translation: Gordon/Robinson]

The main clause in the will (which normally had to be stated at the top of it) was who would be the principal heir (see D.28.6.2.4 (Ulpian, Sabinus, book 6) for a controversy about the matter). Without this clause, the will was invalid. He was the person who inherited the bulk of the estate (both debts and assets). Usually, as can be seen from the example above, this would be the oldest son of the deceased, thereby reinforcing the idea of agnatio as the principle on which the Roman law of persons and family operated. (Sons who became legally independent upon the death of their father were called sui heredes, see D.28.2.11 (Paul, Sabinus, book 2).) Gaius tells us about strict legal rules in this regard:

Inst.Gai.II.123.

Failure to make explicit provision for a son in power was fatal to the will and the rules of intestacy applied. In the case of the will of Antonius Silvanus above, the testator awards all of his goods, both domestic and in the military camp, to his son. In the same clause he disinherits anyone else (These could be catered for through smaller bequests such as legacies or ideicommissa, see D.28.1.28 (Ulpian, Edict, book 57).) The principal heir is given a certain period to accept the inheritance formally. Take the following example of formal acceptance from 170 CE:

It is attested by the girl Valeria... through her procurator Lucius Valerius Matidius and her brother Plutinius Antinoensius that she has formally accepted the inheritance of her mother Flavia Valeria and that she is her heir according to the will. [Date and place of drafting plus signatures of witnesses]. (FIRA III, §60) [translation: mine]

As we can see from the will of Antonius Silvanus, should the heir fail to accept the inheritance by the end of the period, he is formally disinherited according to the will and replaced by the next in line. This is known as substitution (see Inst.Gai.II.174-5). The heir next in line is his brother who is also given a specific period of time to accept the inheritance. If he fails to do so by the end of the period, he is formally disinherited, but granted an amount of money as a legacy (I give and legate.). This practice of substitution is the law of the time according to Gaius:

Inst.Gai.II.164. Outside heirs are usually required to make a formal declaration of acceptance (cretio in Latin), that is, a limit is imposed on the time they have to think the matter over; either they accept within the fixed time or if not, at the end of that time they are displaced..

Now, all declarations have a fixed time limit. A tolerable period for this has been taken as a hundred days. [translation: Gordon/Robinson]

The rest of the will of Antonius Silvanus contains a number of provisions. These are instructions which the testator gave to his remaining family. Notice how he instructs someone to act as a procurator (general agent) who is tasked with seeing that all of his property is accounted for. Also, notice how the testator uses the will to set free some of his slaves and to provide them with some property. (It was also possible to appoint a slave as heir with a bequest that he be freed and accept the inheritance, see Inst.Gai.II.185-6) Finally, notice how carefully the clauses at the end of the will have been constructed to show that the will was drafted according to the formalities of Roman law and duly witnessed by the correct number of witnesses as prescribed by law.

Apart from the matters specifically highlighted in this will, legal sources show that other matters related to testamentary succession occupied the minds of the jurists. These include matters such as whether a person's estate can be disposed of partly through the rules of testate and partly through the rules of intestate succession; what form of words the legacies included in a will must have (these rules are quite detailed and are best left for a textbook on Roman law); whether the principle of universal succession could be circumvented by leaving the bulk of the estate to individuals using legacies (it was settled that it could not, see the Lex Falcidia of 40 BCE); the use of codicils created after the will had been drafted and finally the use of fideicommissum, a type of trust whereby money or goods were given to one person in the will, but with the instructions to use it to the benefit of other members of the surviving family (see D.31.77.12 (Papinian, Responses, book 8) for example). Here we have an example of a codicil from 175 CE:

... I ask that you erect a monument worthy of my youth for

me....

While there can be no doubt that many of the finer points regarding these issues were theoretical matters which piqued the interest of the jurists on a conceptual level, it should also be borne in mind that the Roman jurists were actively involved in drafting wills and in providing legal advice to praetors, judges and legal representatives of litigants. Thus, the issues which they discuss in relation to testamentary succession must have a 'real' element as well and thus provide us with a snapshot of some of the most common issues surrounding the rules of testamentary succession in Roman law. This can be seen, for example, in the procedure which developed in the late Republic whereby those who are deemed sui heredes (the meaning of this term will be explained below) could challenge a will in the court of the praetor if they felt that they had been wrongly passed over. This process, known as the Querela inofficiosi testamenti, which took place in front of the praetor, essentially entailed that the will should be overturned and that the rules of intestate succession should be applied to the estate.

The rules of intestate succession are designed to operate where no will has been made or an existing will has been found not to comply with the formalities set by the Roman law of succession. In essence, it contains a number of rules stating which groups or classes of people should inherit upon the testator's death. The basic principle underlying these rules is that of blood relationship thought the male line. Thus, the first group to inherit was called the sui heredes, that is, anyone who would become sui iuris by virtue of the death of the testator, typically his sons.

Inst.Gai.II.152. There are compulsory heirs, immediate and compulsory heirs, and outside heirs.... 156 The immediate and compulsory heirs are, for instance, a son or daughter, also grandchildren through a son and so on down the line, who were within the paternal power of the deceased at his deathbed.... 157 These heirs are called immediate, the testator's own heirs, because they come from inside the family and are in a certain sense thought of as owners [of the estate] even while their parent is alive.... They are

called compulsory because they have no other choice in the matter. Whether under a will or not, they become heirs automatically. 158 But the praetor gives them a right to stand off from the estate so that it is the parent's property which is sold up.... 161 All other heirs, not being within the testator's paternal power are called outsiders.... 162 Outsiders have a choice whether to accept the estate or not.... [translation: Gordon/Robinson]

Where no sui heredes existed, the rules of intestate succession dictated that the next class of people to inherit would be the proximi agnati, that is those persons related to the testator through agnatio, blood relation through the male line. These would be the brothers of the testator or if none existed, his uncles. Finally, if none of these existed, the inheritance would go to the clan to which the testator belonged. Two observations may be made about these rules. First, it is clear that they were drafted, much like the rules of testate succession, to ensure that the bulk of the estate went to the nearest blood relatives of the testator. This reinforces the importance of agnatio and familia to the Romans. Secondly, certain classes of people are notable by their absence: the rules of intestate succession do not mention spouses or emancipated children at all.

During the course of the classical period, the rules of intestate succession which had developed out of the ius civile were slowly altered by the praetor. Since the praetors could not circumvent the civil-law rules, they developed a system of praetorian succession whereby interested parties could apply to the praetor's court for ‘possession of the goods' which would enable them to claim the inheritance (it operated like an interdict). The praetorian rules on intestate succession did not alter the civil-law rules. It merely adapted them slightly to take account of classes of persons who, under the civil-law rules, were largely ignored when it came to succession (see D.38.6.1.1-2 (Ulpian, Edict, book 44) for an account of these rules). The rules were as follows. In the first line, all legitimate children could inherit, whether emancipated or not. In the second degree, everyone who would could have inherited under civil law (blood relatives, etc.). In the third degree, all blood relatives whether through the male or the female line. In the fourth degree, the surviving spouse, and finally, if none of these existed, the state. The development of these rules clearly shows the main contribution of praetorian law to the Roman law of succession. Whereas the old civil-law rules were largely concerned with the transfer of property through universal succession, the praetorian rules were more concerned with ensuring that the surviving familia should have the benefit of the testator's estate where a will did not exist or had failed on account of a lack of formality.

Suggested further reading

Frier, B.W. and McGinn, T.A.J. A Casebook on Roman Family Law (Oxford 2004)

Tellegen, J.W. Roman Law of Succession in the Letters of Pliny the Younger (Zutphen 1982)

Tellegen-Couperus, O.E. Testamentary Succession in the Constitutions of Diocletian (Zutphen 1982)

Watson, A. Rome of the XII Tables: Persons and Property (Princeton NJ 1975)

Watson, A. The Law of Succession in the Later Roman Republic (Oxford 1971)