Inheritance law in ancient Rome

The earliest forms of Roman will were made at an assembly of the people called the comitia calata ("summoned assembly") which was held twice a year. Soldiers could also make a will before they went into battle, called a in procinctu ("with togas girded up"). Both of these methods had ceased to be used by the Late Republic.[12][9]

They were replaced by the testamentum per aes et libram ("the will made by bronze and scales"). This form of will rested on the legal fiction that the testator was formally conveying (mancipatio) his property to a trustee (familiae emptor, "buyer of the household") who would then convey it to the chosen heirs on his death. The act of conveyance had to be witnessed by a scale-bearer (libripens) and five other witnesses .[12] Initially, the will was made orally, but written wills became common early. By the Late Republic, the actual ceremony was no longer carried out, although the term was still being used in the second century AD.[14] From the second century BC, all that was required was a written will sealed by seven witnesses (signatores).[12][14]

Wax tablet with part of a Roman will, found in Wales

Wills usually took the form of three wooden writing tablets (tabulae). One surface of each was covered with wax and a copy of the will was written on two of the tablets. The tablets were tied together, so that one copy was visible (scriptura exterior) and the other was not (scriptura interior). The seals of the witnesses were placed over the cord, so that it was impossible to open the tablet and view the inner copy without breaking the seals. This design was intended as a guarantee against tampering.[14] This form was mandated by the senatus consultum Neronianum of AD 61, but it was probably the usual form before that.[14]

To be valid, a will had to name an heir or heirs (heres or heredes).[12] These could be designated using the phrases "Be thou, so-and-so my heir" or "I order that so-and-so be my heir" (Titius heres esto or Titium heredem esse iubeo). Any other phrase, like "I wish that so-and-so be my heir" or "I make so-and-so my heir" (Titium heredem esse volo or Titium heredem facio), would not be valid.[14]

If there was no valid heir then the whole will would fail, including legacies left to people other than the heir.[9] Under the principle of universalis successio ("total inheritance"), the heir inherited all rights and obligations of the deceased, including all their debts.[15][16] Thus, becoming heir to a heavily indebted estate could lead to bankruptcy.[15][16] Most people were granted a hundred days to consider whether to accept the role of heir. But children who had not been emancipated before death (sui heredes) and slaves who were simultaneously freed and appointed heir in the will could not refuse the role.[17]

Under the civil law, there was an assumption that all children of the deceased were heirs unless the testator specifically disinherited them (by name for male children, by general statement for female children).[15] Under the praetor's law, this rule was extended to emancipated sons.[15] Sometimes a testator would disinherit their children in order to avoid them becoming liable for any debts and then require the named heir to pass the property to the children through a fideicommissum.[13]

The will could also name substitute heirs, who would take over the role of the heir if the initial heir died before the testator or refused to accept the will.[12]

Justinian introduced a rule called "the privilege of inventory" (beneficium inventarii), according to which, if an heir began making an inventory of the estate within thirty days of learning that they were the named heir, then they would only be liable for debts from items contained in the inventory.[13]

Under the civil law, the heir claimed the estate through a hereditatis petitio ("claim of heirdom").[18] The praetor's law provided an alternative, the bonorum possessio ("order for possession of the estate"), where the heir was determined by the ruling of a magistrate.[13][4] This ruling might be secundum tabulas ("in accordance with the will") or contra tabulas ("contrary to the will").[13] These two systems were very complicated, leading to efforts to simplify them and, eventually, they were merged.[13]

Heirs had to be specific natural persons. It was impossible under Roman law to make a community, state, trust, or company the heir. The heir could not be any "unknown person" (incerta persona), e.g. a child who had not been born when the will was written.[19]

Foreigners (peregrini) could not be named as heirs.[11]

Under the Lex Julia de maritandis ordinibus of 18 BC and the Lex Papia Poppaea of AD 9, unmarried adults could not inherit or receive legacies and married adults without children could only receive half the inheritance.[20]

Originally, the testator was able to manumit any number of slaves in the will. Under Augustus, the Lex Fufia Caninia of 2 BC placed an absolute maximum limit of one hundred manumissions and lower limits for estates which had smaller numbers of slaves.[21] The motivation for this may have been a desire to limit the number of freedmen[22] and/or to prevent the testator from bankrupting the estate.[23] Somewhere between 5% and 8% of all Roman manumissions were testamentary manumissions.[23]

The testator could leave legacies to third parties, which the heir was obliged to pay from the estate. Legacies could provide a method for leaving property to people who could not legally be heir, but foreigners, communities, and uncertain persons could not be legatees either.[22][24] Unlike the heir, legatees were not liable for the estates debts.[23] Legacies could be per vindicationem ("by claim"), where the legatee became owner of the property in question, or per damnationem ("by obligation"), where the heir was required to make a regular payment to the legatee from the property.[22] A legacy was only valid if the phrase "to whom I give and legate" (cui do lego).[19]

Legacies could include dowries, money given to slaves (peculium), furniture, wine, and so on.[20] Annuities might be granted to servants of the deceased, to be paid on a certain day each year for the rest of the servant's life.[22] A lifetime usufruct of a property was often granted to the widow of the deceased.[20] Legacies were often used to leave money to towns or associations for specific purposes (e.g., holding games in honour of the deceased, constructing public buildings, providing heating for the bathhouse or oil for the gymnasium.[20]

Under the Lex Falcidia of 40 BC, legacies could not take up more than three-quarters of the total estate (i.e. the heirs had to receive at least a quarter). If the legacies were more than this amount, then they would be reduced in order to ensure that the heirs received a quarter of the total value of the estate.[22]

Justinian merged legacies into the system of fideicommissa discussed below.[25]

Under the Twelve Tables, testators had complete freedom of testation.[26][11] In the Late Republic, children could file a "complaint of the undutiful will" (querela inofficiosi testamenti) before the centumviral court, if the will gave them less than one quarter of what they would have gotten in the event of intestacy and there was no reason why they had been excluded.[26][27] The heirs would have to demonstrate that they had always behaved in a dutiful manner towards the deceased.[27] If they won the case, they got the full share that they would have received in case of intestacy.[28] This was based on the legal fiction that the testator could not have been of sound mind when that part of the will was written.[28][27] The claim only voided the specific section of the will dealing with the claimant, not the whole will.[28] The law mostly did not specify what were valid reasons for disinheriting someone.[28] Thus, it was generally determined by the social expectations of the jury.[11] Fourth-century laws mention "immorality" and becoming a gladiator as reasons and Justinian provided a full list in AD 542.[28]

Even when a disinheritance was totally legal, there was strong social pressure against disinheriting children and direct descendants.