Testamentary Succession

The law of testamentary succession consisted of the rules relating to the making of a valid will, what dispositions could be made in a will and what effect these dispositions had.

The earliest form of will known to Roman law was the testamentum calatis comitiis, a will created in a strictly formal manner in the comitia calata, a special gathering of the popular assembly convoked twice a year for this purpose.

Originally the assembly had to grant its approval in the form of a legislative act, but in later times the people’s role in these cases was confined to merely witnessing the relevant procedure. Another early form of will was the testamentum in procinctu: a will created through an oral declaration by a soldier to his fellow soldiers when they were in battle array. Both the above forms of will became obsolete and fell into abeyance before the end of the Republic.^{^[430]} A third form of will that emerged at an early stage and continued to be used for a relatively long period was the testamentum per aes et libram, which developed from the practice of using a modified form of mancipatio. The testamentum per aes et libram consisted of the formal transfer of the testator’s estate by way of mancipatio to a trustee (familiae emptor) with oral instructions that the latter should divide it among the persons nominated as heirs after the testator’s death. In early law the trustee stood in place of an heir and could, in theory, govern the estate in whatever manner he wished as though he were the heir. At a later stage, however, he was considered to be no more than an executor of the testator’s wishes and could be compelled by the beneficiaries to give effect to the will. The relevant procedure was modified by the praetor in the later republican age: if a written will were produced with the seals of those necessary for a mancipatio (i.e., the familiae emptor, the libripens and the five witnesses), then the praetor granted possession to the person nominated as heir.

Finally, the testamentum tripertitum was introduced in the later imperial period and became the principal form of will in Justinian’s time. This form of will was called ‘tripartite’ because its requirements had been derived from three sources: the ius civile, which required that the whole will had to be created at one and the same time in the presence of witnesses; the ius praetorium, according to which the will had to be sealed by seven witnesses; and imperial legislation, which determined that the testator and the witnesses should each write a subscriptio, i.e. a short formal declaration on the will for identification purposes.^{^[431]}

The term testamenti factio denoted the legal capacity of a person to create a valid will under Roman law.^{^[432]} Originally, only male Roman citizens could make a will, but in later law foreigners with ius commercii and, since the time of Augustus, women could also act as testators. The testator had to be sui iuris, over the age of puberty and of sound mind.

In principle, any Roman citizen was eligible to be named as heir, over or under the age of puberty, sui iuris or alieni iuris, sane or insane. Furthermore, slaves of Romans could also receive under a will. When a testator instituted his own slave as heir, the slave became free and was compelled as a heres necessarius to inherit. This event often occurred where a testator wished to liberate his slave, but it could also happen when the testator’s estate was so encumbered with debts that he did not wish to burden his natural heirs with it. On the other hand, if the slave of another person was instituted as heir, the slave could only accept on the instruction of his master who actually acquired the inheritance. For a certain period in history, women were restricted in their capacity to inherit^{^[433]} but this restriction fell into abeyance during the Principate. Undetermined persons (personae incertae) could not inherit at all and this category embraced those whose juristic personality could not be precisely determined in the mind of the testator.

Originally, this meant that legal persons like the state, municipalities and religious or charitable organisations could not be instituted as heirs nor could persons not yet born at the time the will was composed (postumi). In the course of time, however, the disqualification of postumi was removed through modification of the ban on the institution of personae incertae.^{^[434]}

To avoid the danger of dying without an effective will, the testator could appoint a substitute, or line of substitutes, to succeed in the event that the instituted heir could not inherit. Where the instituted heir was a suus heres of the testator and under the age of puberty, the will was so written that the substitute would take even if the instituted heir took but died before reaching the age of puberty.^{^[435]}

In addition to nominating an heir, a will could contain legacies and trusts and appoint guardians (tutores). A legacy (legatum) was a particular form of testamentary disposition whereby the testator left one or more specific objects to some person who was not one of his heirs. Otherwise than in the case of the heir, the legatee (legatarius) benefited under a special title which meant that he only acquired certain individually designated objects (res singulae). Insofar as the legacy amounted to a diminution of the estate’s assets, it may be described as a burden on the heirs.^{^[436]} Legacies, like institutions of heirs, had to be created by the use of special formal words, and were of different kinds depending on the words used. The two most important kinds of legacy were the legatum per vindicationem and the legatum per damnationem.^{^[437]} The legatum per vindicationem was used to make the legatee owner of the thing bequeathed on the death of the testator and without intervention of the heir. The legatum per damnationem, probably the most important form of legacy, had a wider scope.

By means of this form the legatee acquired a claim, supported by a strong personal action, against the heir or heirs for payment of the legacy. The effect was that the legatee was in almost the same position as a creditor of the deceased estate. A trust (fideicommissum) was a disposition whereby a testator made an informal request to a person (fiduciarius) to convey a benefit from the estate to a third party ( fideicommissarius). In republican times, trusts were not legally enforceable but were binding only on the conscience of the heir. They were employed primarily as a means of evading certain restrictions in the law of succession relating to the institution of heirs and legatees. However, in the time of Augustus they became legally enforceable in some cases by means of an extraordinary procedure that took place before a specially appointed praetor (praetor fideicomissarius). Furthermore, in some situations codicils (codicilli), informal documents giving directions for the disposal of a deceased estate, were recognized as having legal force. A distinction was drawn between two kinds of codicilli: the codicillus testamento confirmatus, a codicil confirmed in a will, and the codicillus testamento non confirmatus, the independent codicil. In the former codicil any disposition that could be made in a will, except for the institution of an heir and disinheritance, could be effected, while in the latter only fideicommissa could be created. In the time of Justinian, when legacies and fideicommissa were placed on an equal footing, legacies could also be established by means of such a codicil.

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

Testamentary Succession

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