Testamentary capacity

Any Roman citizen who was above the age of puberty, independent (sui iuris), and mentally healthy, generally had the capacity to make a will (active testa­menti factio). Since Romans under parental power owned nothing, however, they were not able to compose a testament.

consent of their tutors was required (Gaius 1.115a; 2.112-113; Epitome Ulpiani 20.15). Wills made by lunatics (except during an interval of lucidity) and spendthrifts were invalid.

Legal capacity to inherit under a will (passive testamenti /actio) was more general. Only Roman citizens could be appointed heirs in the will of a Roman citizen. Romans under parental power or curatorship or below the age of puberty could accept or reject an inheritance with the consent of their father, curator, or tutor, respectively. As mentioned above, the testator’s own slave could be appointed heir if he was freed under the same will. Persons of whose individuality the testator had no clear idea (uncertain persons) could not be appointed heirs (e.g., “the person who comes first to my funeral”). But a will might include children yet to be born at the time it was made (postumi sui). All abstract beings (idols) and corporate bodies were considered uncertain persons and therefore could not be instituted as heirs. Nevertheless, some exceptions were made over time in favor of the state or municipalities as well as charities. Some persons, although validly instituted heirs, were disqualified from taking possession of the estate (ius capiendi). That happened, for instance, with unmarried persons, males over age twenty-five, and females over twenty after the Augustan reform on marriage (Gaius 2.111).