How might a Roman testator control the devolution of his property after death?
According to Roman law, a person who wished to control what happened to his property after his death must do so by means of testamentary disposition. In the absence of an operative will, a person’s property would be distributed according to the laws on intestacy following his death. However, the rules concerning the making of a will, the provisions that could be contained therein and the manner in which these were to be expressed were not always straightforward. This essay will outline the means by which a Roman testator could control the devolution of his property after death and comment upon the extent to which the law protected the testamentary wishes of the testator.
Making a will enabled a person to control the way in which his property was distributed on death and this power to bestow or deny favour and wealth upon others was therefore a powerful bargaining tool, not to mention an effective way to control the behaviour and conduct of one’s progeny. Despite the clear advantages to the making of a will, it was not a widespread activity for Romans, possibly because so many Romans lacked testamenti factio activa (the right to leave property under a will) as this was a right conferred with citizenship and so much of the population of Rome was composed of non-citizens.
Furthermore, not all citizens were entitled to make a will and many more were possessed of nothing of value to pass to others.
Therefore, the ability to control the way in which property was distributed after death was limited to a narrow class of people; characteristically, adult male Romans (although from Augustus’ time, women were also permitted to make a will).Capacity to devolve property by will after death was further limited by the requirement that the testator was of sound mind at the time of making the will and this soundness of mind must continue until death. Temporary loss of mental capacity renders a person’s will invalid even the later regained their soundness of mind. This strict ius civile position was somewhat moderated if the praetor could be persuaded to grant bonorum possession to the heirs of the failed will after the testator had died. In other words, a person who had capacity to make a will could lose that capacity at a later stage in life which rendered his testamentary wishes invalid according to the strict application of the law but a discretion did exist to ensure that the wishes of the testator were adhered to if the will was rendered void on this basis. However, it is clear that there was no guarantee that this would happen thus even the most clearly expressed wishes of a mentally competent testator could be negated if his mental capacity diminished in later life. As such, no testator could be certain that his property would be distributed in accordance with his wishes as there is no way to predict the extent to which one’s mental capacity may suffer as the years pass. Conversely, a person who made a will and subsequently became insane would not have their will rendered invalid; an inexplicable exception to the requirement that the testator should retain capacity throughout his lifespan.
In addition to continuing testamentary capacity, it was also a requirement that the will be witnessed by persons who were possessed of the capacity to witness a will (testamenti factio relative), generally adult male citizens as witnesses must be free from legal disability (idonci) meaning that woman and slaves were not good witnesses. Moreover, Roman law required that the property was left to a person who had the capacity to be appointed as a heir (testamenti factio passive) and the right to take property by will (ius capiendi): these two factors were generally concomitant subject to a limited range of exceptions. For example, Junian Latins lacked ius capiendi unless they acquired citizenship within a specified timeframe after learning of the inheritance, characteristically by marriage to someone with citizenship, part of a series of provisions aimed at encouraging marriage and procreation.
In addition to this, there were provisions in place to protect those who had a legitimate expectation that they were inherit such as the testator’s heirs and descendants. The condition si institus sine liberis decesserit operated to read into a will provisions that benefited the child(ren) of the testator if they were not named on the face of the will even if this meant that they had preference over others who were expressly named. Those with such an expectation had a remedy of querela inofficiosi testamenti if they were passed over without mention in the will; in effect, there was a presumption that a testator would leave property to his progeny and a failure to do so rendered the will vulnerable to being set aside as officiosa (deficient in natural duty) if the testator left nothing to a child without stipulating that this was a deliberate action and giving a ‘true and sufficient’ reason for doing this. In other words, a testator was not entitled to disinherit a child by simply failing to mention them in his will; he must specify that they were to receive nothing and provide an explanation of why that had been disinherited. Originally, there was a requirement that a son must be referred to by name in order to be excluded whilst daughters and grandchildren could be excluded as a class whereas later laws on disherison required that all those excluded were specifically named.
Even if this requirement were adhered to, the explanation was subject to scrutiny to ensure that they reason given was accurate and that it was a satisfactory reason to disinherit a child. This placed a significant limitation on the ability of a testator to leave property as he chose upon his death because a failure to include a child would be deemed to be an error if the child was merely omitted from the will or the decision subject to adjudication if it was stated on the face of the will that the omission was deliberate. Roman testators developed a strategy to overcome this interference with their testamentary freedom and to control the disposition of their property after death. It became commonplace to leave a child who had caused displeasure a nominal sum in a will which effectively disinherited him whilst protecting the will from querala officiosi. The inclusion of a small express legacy demonstrated that the child had not been accidentally forgotten and it precluded any evaluation of the adequacy of the decision to disinherit a child. As such, it is demonstration of the measures adopted by testators to ensure that their wishes regarding the destination of their property were not circumvented by the authorities after their death.
Further limitations existed as to the recipient of testamentary provisions which further limited the right of the testator to control the ownership of his property after death. For a time, ‘uncertain persons’ (personae incertae) such as the church, unincorporated associations and the like could not inherit property under a will. Therefore, a person was precluded from benefited worthy causes; he would have to leave the property to an individual with the hope that they would adhere to his wishes that they carry out beneficent acts on his behalf but in the knowledge that there was no way in which they could be compelled to do so. A further category of personae incertae were those who were not born at the time that the will was made therefore a testator could not make a will that benefited any children that he may have in the future. The justification for this limitation was that it was not practical to leave property to a speculative person; someone who did not, and may never, come into existence. For example, a testator may, upon marriage, presume that he will father children and make a will in anticipation of this by making reference to property to be left to ‘any children of the marriage’. However, if his wife is barren or he is infertile or he merely dies before any children are conceived, this provision purports to leave identifiable property to someone who does not exist. The particular hardship created by this category of personae incertae concerned children who were conceived prior to death but born after death (postumi). Such was the perceived inequity of this rule that it was modified to ensure that postumi were excluded from the ban of leaving property to personae incertae thus giving a little more freedom to the testator regarding the disposition of property after death.
This requirement that the beneficiary of a will must be testamenti factio passive and ius capiendi could be a significant limiting factor upon the ability of a testator to control the devolution of property after death; a named beneficiary may predecease the testator, lack the legal capacity to inherit or be unwilling to accept the property. Moreover, the testator may become deprived of mental capacity prior to death thus invalidating his will. In order to circumvent these limitations, the practice of appointment of substitute heirs (substitutio vulgaris) came into being. By deploying substitution, the testator could ensure that his property would pass to the substitute and that the will would not be declared void and administered in accordance with the laws of intestacy particularly if a substitute was chosen who was not legally entitled to refuse to accept the property, such as a slave (heres necessaries).
Although this could be an effective measure to ensure that the property passed in accordance with the will rather than under the rules of intestacy, it left the position of the testator constrained in terms of testamentary disposition. In particular, substitutio vulgaris could result in property ultimately devolving to someone who the testator does not particularly wish to benefit but who was named as the last of the substitutes on the expectation that someone earlier in the nominated substitutes would survive. This rule did save the will from invalidity but it was no guarantee that the property would pass to those who the testator desired to benefit, particularly as certain people were precluded from holding property or from receiving property by will.
In effect, the Roman testator was placed in an unfortunate position. He was limited in his choice of beneficiary by testamenti factio passive and subject to stringent requirements regarding the exclusion of those who were ius capiendi. In other words, those to whom he may wish to leave property may be excluded by law whilst a legal presumption in favour of his children existed which needed careful manoeuvring to displace or avoid. Moreover, any failure of the will for want of capacity, witnesses or beneficiaries render the will liable to be declared void and the testator’s property administered in accordance with the laws of intestacy. The key measure that could be deployed to avoid this was the rule of substitution which was itself uncertain as one could not predict in advance where in the chain of named substitutes the property would ultimately vest. The ultimate fall-back position of naming a slave as the final substitute as they were not entitled to refuse the property seems unsatisfactory especially as this disposition may be to the detriment of those who the testator truly wished to benefit but was precluded from law from doing so. The ability of the authorities to scrutinise and evaluate the will after the death of the testator also contributed to a situation in which the wishes of a testator concerning the disposal of his property after death may be thwarted despite his best efforts to control the devolution of his property. It seems that the extent to which Roman law allowed the testator to control the devolution of property was largely contingent on the nature of his testamentary dispositions. Bequests to children who had attained majority, particularly if the testator remained of sound mind, were likely to be put into effect whilst bequests other than this were in a more vulnerable position.
Word Count: 2000 words
Bibliography
Borkowski, A., (2005) A Textbook on Roman Law, London: Butterworths
Champlin, E., (1991) Final Judgements: Duty and Emotion in Roman Wills, Berkeley: University of California Press
Daube, D., (1969) Aspects of Roman Law, Edinburgh: Edinburgh University Press
Gordon, W., ‘Roman Law in Scotland’ in Evans-Jones, R., (1995) The Civil Tradition in Scotland, Edinburgh: The Stair Society, pp. 13-40
Metzger, E., 'Acquisition of Living Things by Specification' Edinburgh Law Review (2004) vol 8, pp. 112-15
Nicholas, B., (1975) An Introduction to Roman Law, Oxford: Clarendon Press
Pugsley, D., (1972) The Roman Law of Property and Obligation, Cape Town: Juta Press
Thomas, P., (1986) An Introduction to Roman Law, London: Kluwer
Related Roman law essays
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
Back to Free Law Essays
