Testamentary freedom

Although a testator could do largely as he pleased in his will, he was subject nev­ertheless to some restrictions, as we have seen. For example, he could not validly leave property to those who lacked capacity to take; nor could he validly impose a condition that was regarded as illegal, immoral, or impossible (see Johnston, 'Succession', 209-10).

8.7.1 Exheredatio

(Inst.2.13., D.28.2., C.6.28.)

Gaius, Provincial Edict, book 17: Among ail the other things which it is essential to look for in drawing up wills the main legal provisions are those concerning the institution of children as heirs or their disherison, so that the will is not broken because they have been passed over; for if a son who is in power has been passed over, the will is invalid. (D.28.2.30.)

The rules on disherison {exheredatio) were among the most complicated in Roman law. It is necessary at the outset to distinguish between the ius civile rules and the praetorian system.

8.7.1.1 The ius civile position

The rules of disherison originated in archaic and pre-classical law to protect sui heredes. Sui could not be excluded from benefiting under a will except by express provision to that effect. So, the testator could disinherit sui, but only if he fol­lowed the correct form. The rule was established that sui had to be either expressly appointed as heirs or expressly disinherited: ignoring or passing them over could result in the will's invalidity. This at least is the traditional view, but Schulz doubts whether the rules bound the testator to appoint or disinherit: 'The republican law­yers had the very natural desire to save the inheritance for the sui, but did not venture to impugn openly the father's will and for that reason did not interfere when he had instituted or disinherited them.

The operation of the ins civile rules depended on the type of sui heredes that were being disinherited. Sons-in-power had to be disinherited by name, as a general rule; other sui could be disinherited by name or by a general clause, e.g. 'Let my daugh­ters be disinherited.' However, it seems that a general clause could validly disinherit a son-in-power if he was the only son of the testator:

I’aul, Replies, book 12: Titius instituted an heir in his will, and, having a son, he put in a disheri­son clause as follows: 'Let all the others, sons and my daughters, be disinherited.' Paul replied that the son was to be regarded as correctly disinherited. (D.28.2.25pr.)

What if the testator failed to appoint or disinherit sui heredes in the correct man­ner? If this occurred in the case of a son-in-power, the will was void and an intes­tacy resulted; otherwise, the will stood but the omitted sui (i.e. those not properly appointed or disinherited) were allowed to share the inheritance.

A complicating factor was the position of sui heredes who were born after the making of the will. As they were postumi, they were considered to be 'unascertained persons' and thus incapable of being appointed as heirs (see 8.4.1.3). On the other hand, as they were sui heredes of the testator when he died, they should have been either appointed or disinherited in the will according to the rules of disherison. The interaction of these rules with those on capacity thus created a potential legal impasse for the Roman testator.

This unsatisfactory position for testators was gradually improved from the late Republic. The trend of the complex reforms was to allow testators to anticipate the birth of sui heredes after the making of the will, by appointing or disinheriting them in clauses such as 'whatever children may be born to my wife.' For example, the lex funia Velleia c. AD 28 validated wills which had appointed or disinherited postumi born between the making of the will and the death of the testator. However, these reforms generally did not apply to postumi through adoption, i.e. those who were adopted by the testator after the making of the will.

The ius civile rules on disherison may appear to have been rather artificial and overladen with traps for the unwary testator. They were. But the rules did at least help to focus the testator's attention on the importance of what he was doing, i.e. appointing or disinheriting very close family members.

8.7.1.2 Praetorian exheredatio

The praetors introduced their own rules, mainly in an attempt to achieve consist­ency with their scheme of intestacy. All male sui had to be appointed or disin­herited by name, as a rule, but a general clause sufficed for other sui. If the will did not satisfy these requirements, the omitted sui could seek bonorum possessio contra tabulas ('possession of the estate contrary to the tablets', i.e. the will) from the praetor. Certain persons who were not protected by the ius civile rules were included in the praetorian scheme, notably emancipated children (who strictly had ceased to be sui on emancipation). However, emancipated children who obtained bonorum possessio had to account (as against any sui appointed as heirs) for property obtained as a result of the emancipation, i.e.

The praetors altered the position concerning the case of omitted postumi who had predeceased the testator. The strict ius civile position was that the will failed, but the praetors allowed the heir to take:

Ulpian, Disputations, book 4: A postumus, who had been passed over, having been born in the lifetime of the testator, died; although by the strictness and undue nicety of the law the will is regarded as broken, still, if the will has been sealed, the heir appointed can claim bonorum possessio ■ ■ ■ (D.28.3.12pr.)

8,7.1.3 Justinian's reforms

Justinian typically swept away much of the old law, substituting for it a greatly simplified scheme. The basic position on disherison was that descendants, whether male or female, had to be expressly disinherited by name. Failure to do this was generally fatal for the will.

8.7.2 Querela

(D.5.2.)

In pre-classical law, a testator could disinherit his family members provided that he satisfied the requirements of exheredatio. They had no remedy, assuming the will was validly made. But a testator who acted capriciously, disinheriting members of his family for no good reason, could easily incur social opprobrium. Causeless fail­ure to provide for one's family in a will was regarded as a breach of moral duty. In due course moral duty was translated into legal remedy: a procedure was developed in the late Republic by which a will could be challenged on the ground that the testator had failed in his duty. The procedure was known as the querela inoffidosi testamenti—'the complaint concerning the undutiful will'. The complaint was nor­mally heard by the court of the centumviri, such cases often attracting considerable public interest. See Frier and McGinn, Casebook, 377-85.

The original justification for allowing such challenges was that the testator must have been insane to make an undutiful will; but this was pretence as it is clear that insanity was not really the issue:

Marcian, Institutes, book 4: The supposition on which an action for undutiful will is brought is that the testators were of unsound mind for making a will.

Three main issues need consideration in examining the operation of the querela procedure. In what circumstances could the querela be brought? Who could bring it? And what were the consequences of a successful complaint?

8.7.2.1 When could the querela be brought?

The essence of the complaint was that the testator had acted undutifully, i.e. had unjustly failed to provide for the complainant. Until Justinian, the question of whether exclusion was unjust was largely a matter for the discretion of the court. It is probable that a consistent practice was developed by the centumviri in the matter. A misunderstanding by the testator often amounted to an unjust exclusion:

Marcellus, Digest, book 3: To say a will is undutiful is to argue one should not have been dis­inherited or passed over. This generally happens when parents disinherit or pass over their children through a misunderstanding. (D.5.2.3.)

The deliberate exclusion by a testator of his children by a previous wife in favour of a subsequent wife, a scenario not unknown in the modern world, could sometimes lead to a successful querela, as in the case of Attia Viriola, the wife of an ex-praetor. She was successful in her complaint against her father's will—in which she had been disinherited in favour of her stepmother—'the bride he had wooed, won, wed and widowed in the space of a week or two' (Gardner, Women in Roman Law, 185). In this respect, the timeless and universal relevance of Roman law is vividly dem­onstrated by the following text:

Gaius, Lex Glitia, sole book: For parents should not be allowed to treat their children unjustly in their wills. They generally do this, passing an adverse judgment on their own flesh and blood, when they have been led astray by the blandishments or incitements of stepmothers.

In the classical period, the scope of the querela was considerably widened. It became possible to bring the action on the grounds of inadequate provision as well as total exclusion: the complainant could bring the querela even though he had received something under the will. What was the test of whether provision was adequate? The rule came to be accepted, probably under the influence of the lex Falddia (see 8.6.3), that provision was adequate if it amounted to at least one-quarter of what would have been received under intestacy. This entitlement to the minimum of a quarter was known as the legitima portio ('the lawful share').

An important restriction on the bringing of a querela was that the procedure could only be used as a last resort, not if there were other remedies. Thus, if persons omit­ted from the will had a claim under the rules of exheredatio, they could not bring the querela. The querela had to be brought within five years (originally two) from the entry of the heir on the inheritance.

8.7.2.2 Who could bring querela?

Ulpian, Edict, book 14: It should be noted that complaints against the undutiful are common; for it is possible for everyone to argue want of duty, parents as well as children. For one's cog­nates beyond the degree of brother would do better not to trouble themselves with useless expense since they are not in a position to succeed. (D.5.2.1.)

The querela could only be brought by those who would have succeeded to the deceased's estate (under the ins civile or praetorian law) had he died intestate. The class was confined to the following: descendants, ascendants, brothers, and sisters. In the later Empire, collaterals were barred from the action unless a 'base' person had been appointed heir, e.g. anyone pursuing a disreputable profession. The mem­bers of the class constituted an order (as set out earlier). Thus, if there were no descendants, or none that challenged the will successfully, the right to bring the querela passed to ascendants. The querela was generally not available to anyone who had 'accepted' the will by agreeing to receive benefits under it.

What if the complainant died before the querela was resolved? The action passed to his heir if the complainant had commenced with it before his death, although in the later Empire it sufficed if there was evidence of intention on his part to bring _: the claim prior to his death.

; 8.7.2.3 What were the consequences of the querela?

■Bringing a querela was something of a gamble since, if it failed, the complainant

: might forfeit any benefits under the will:

■ Ulpian, Edict, book 14: One should bear in mind that a person who has without justification i brought a complaint of undutiful will and has been unsuccessful loses what he received under the will, and this is claimed for the imperial treasury on the ground that he did not deserve it. But only the person who has continued with an unjustified suit right up to the judges' verdict has what he was given under the will taken from him. But if he has left off or died before the verdict, what he was given is not taken from him.... (D.5.2.8.14.)

The effect of a successful querela depended on the circumstances. If there was only one heir, the will failed and an intestacy resulted; similarly, if there were two or more heirs and the querela was brought successfully against all of them. But where the querela was successful against one heir but not another, or where it had been brought against one but not another, a partial intestacy would result from the suc­cessful claim—an important exception to the rule that a man could not die partly testate:

1’apinian, Questions, book 14: Ason who, after taking two heirs to court in an action for undu- tiful will, got differing decisions from the judges, defeating one heir and being beaten by the other, can in part sue debtors and himself be sued by creditors and also claim items and divide up the inheritance. For it is right for an action for dividing an inheritance to be avail­able, since we believe that he has become in part a legitimus heres, and for this reason, part of the inheritance has remained subject to the will; and it does not seem ridiculous to be held intestate in part. (115.2.15.2.)

What was the effect of a successful querela on the testator's inter vivos gifts, e.g. a gift of a dowry?

Modestinus, Replies, book 3: [EJven if a complaint of undutiful will has succeeded, gifts which the testator is alleged to have made during his lifetime are not, however, for that reason ren­dered void and no claim can be made for part of what has been given as dowry. (P.5.2.11.)

However, in the late classical period, a special querela procedure was introduced in cases where the testator was alleged to have made inter vivos gifts in order to frus­trate claims made on his death. The gifts could be ordered to be reduced by half, the donee having to repay the relevant amount to the estate. These anti-evasion meas­ures are comparable to provisions in English law under the Inheritance (Provision for Family and Dependants) Act 1975, whereby certain inter vivos dispositions, made by the deceased with a view to defeating claims for financial provision under the Act, are regarded as net estate (and thus available for the satisfaction of claims).

8.7.2.4 The querela under Justinian

Important changes were made to the querela system in the late Empire, especially by Justinian. He reslored the original rule that the querela was confined to cases where the complainant had been excluded from the will altogether. He specified various grounds for which exclusion would he considered just, provided that they were stated in the will by the testator. And, he insisted that ascendants should expressly appoint as heirs those of their descendants who would have a claim on intestacy (and vice versa). Failure to do so rendered the actual appointments inva­lid, although the rest of the will remained operative, the omitted person becoming heir via the querela procedure. It is unclear how this rule operated in practice in the light of Justinian's reforms of exheredatio.

Legitima portio was retained for persons who bad been left something under the will, but less than their entitlement. They were given an action (originally intro­duced in the late Empire, before Justinian) to make up the deficiency. A successful action did not invalidate the will. Justinian changed the rules of legitiina portio as regards the testator's children. If there were four surviving children or fewer, they were entitled to a share in a minimum of one-third of the inheritance; if five or more, they were entitled to at least a half.

The concept of the legitima portio, essentially a fixed right of inheritance, has had a considerable influence in European legal history. In some modern systems of inheritance the concept has a central role, e.g. la reserve legale in French law and the German Pflichtteilsrecht. Article 913 of the Code Civil imposes restrictions on wills depending on the number of children surviving the testator. Thus, if one child sur­vives, the will may not dispose of more than half of the estate (but one-third if there are two children, a quarter if there are three or more). The BGH allows next-of-kin left less than a half of their statutory portion to claim the deficiency (s. 2305). See Stein, Le$al Institutions, 179-80. Even in systems in which fixed rights of inheritance have little or no place, such as the modern English law of succession, the concept of fixed rights is seen as a potential alternative, useful in testing the efficacy of the law in situ.