Testamentary succession

A testament or will was a legal act in which a Roman citizen declared his wishes for after his death (see Modestinus, D. 28.1.1). The will served to appoint a respectable heir who would provide continuity to the family and, in

some sense, to the personality of the deceased.

A will could contain important dispositions, such as legacies and other bequests, appointments of tutors, and manumission of slaves. But the “source and foundation” of the Roman will was its institution of an heir (Gaius 2.229). The appointment of one or several heirs was the only essential feature of a will. Without such an appointment, there was no valid will. Likewise, if no appointed heir or heirs accepted the inheritance, the whole testament failed.

The testament was essentially revocable, but nobody could leave two valid testaments. If two had been written, the later will prevailed over the earlier one, even when they were compatible. A subsequent testament always invalidated or “broke” the previous one (testamentum ruptum). The provisions of the will referred to the time of the testator’s death and could be affected by the testator’s acquisitions after making his will or by other circumstances (e.g., the birth of a new son or the death of an heir or coheir). Roman jurists developed a general disposition to do their best to preserve the validity and efficacy of a testament to protect a testator’s last will (favor testamenti).