Testamenti Factio

Evidently, not all persons had the legal capacity to create a will or to receive property under a will. Similarly, not all persons were deemed acceptable to serve as witnesses to the composition of a will.

In this regard the term testamenti factio (‘will-making’) was used in connection with the legal capacity or right of a person to create or receive under a will, as well as one’s capacity to witness a will.^{^[1072]}

In principle, every Roman citizen had the legal capacity to compose a valid will as long as he was sui iuris, above the age of puberty and mentally sound.^{^[1073]}Originally, only male citizens could act as testators but the later law entitled foreigners granted the ius commercii and women (since the early Principate age) to compose a valid will. Unrehabilitated prodigals and persons under curatorship did not have testamentary capacity.^{^[1074]} In principle, the testator had to have the capacity to create a will at the time of making his will and retain it without interruption until his death.^{^[1075]}

In general, any person with testamentary capacity was eligible to receive under a will. However, a category of persons who lacked the capacity to make a will could also be instituted as heirs. Thus persons alieni iuris, persons under curatorship (e.g. insane persons and prodigals) and impuberes could accept or reject an inheritance with the consent of their father, curator or tutor respectively. When a testator instituted his own slave as heir, the slave 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.^{^[1076]} 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 (provided that he had the capacity to inherit).

For a certain period in history, women were restricted in their capacity to inherit^{^[1077]} but this restriction fell into abeyance during the Principate. Moreover, a person could forfeit his right to inherit as a result of the application of a penal provision. 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. Similarly, exceptions in favour of the state, municipalities, charitable institutions and other corporate bodies were gradually admitted as the notion of juristic personality slowly emerged to the extent that most of the earlier restrictions were removed by the time of Justinian.^{^[1078]}

The capacity to receive under a will had to exist at the time when the will was composed and again when it took effect, whether this occurred at the time when the relevant estate fell open or on the fulfilment of a specified condition. Whether the requisite capacity existed or not between these two points in time was irrelevant.

In principle, any person who had the legal capacity to compose a will could be a witness to a will but there were some exceptions. In general, it was required that the person designated to act as a witness was a free male person, possessed the ius commercii and had reached the age of puberty.^{^[1079]} Women and deaf or dumb persons could not act as witnesses even after the relevant disqualifications had ceased to apply with respect to testators. Furthermore, certain members of the testator’s family who had an interest in the will were likewise excluded such as the person appointed heir and persons in his potestas.^{^[1080]}

It is evident that the capacity to be a witness had to exist only at the time when the will was composed.^{^[1081]}

5.3.5

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

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