Chapter 8 Revision sheet

Inheritance

Instructions:

This chapter should be revised in conjunction with chapters 6 and 7. There are close connections in the minds of the Roman jurists between property and inheritance. When revising this chapter, pay specific attention also to dotal property and property belonging to children in power.

Aims:

The broad aim of this chapter is to provide an overview of the different regimes of inheritance that existed at various times in Roman law. It is a chapter of two halves. The first part deals with intestate succession. This is a particularly important area of law as it demonstrates quite fully how the praetors could intervene to alter the existing civil law, albeit in a subtle way. The rules of intestate succession also demonstrate the power of agnatic relationships in Roman law. This is particularly evident in the rules concerning the succession of the surviving spouse [especially female]. Notice the large number of statutory interventions in this area of law. What does this suggest to us?

Important dates:

The Monarchy [Regal Period]: c 753 – 510 BC
The Republic: 509 – 27 BC
The Empire: 27 BC – 476 AD (West), - 1453 AD (East)

Important statutes mentioned:

Law of the Twelve Tables 451 – 450 BC
Lex Voconia 169 BC
Lex Falcidia 40 BC
Lex Iulia de Maritandis Ordinibus 18 BC
Lex Papia Poppaea 9 AD<
Lex Iunia Velleia 28 AD
Senatus Consultum Neronianum 64 AD
Senatus Consultum Trebellianum 56 AD
Senatus Consultum Pegasianum 73 AD
Senatus Consultum Tertullianum 130 AD
Senatus Consultum Orphitianum 178 AD

Overview:

  • Why was it important to make a will in Roman society? [Think here of the Roman concept of ‘friendship’]
  • Was there a ‘horror of intestacy’?
  • The rules of intestate succession.
    • When would intestate succession be triggered?
    • What does ‘stirpital representation’ mean in this context?
    • Why and how the praetors intervened in this area of law. What were their main aims with these interventions?
    • Sketch the outline of the main praetorian changes.
    • Compare the praetorian changes to the Justinianic changes – were the Justinianic rules motivated by different concerns?
  • How to make a Roman will (capacity – notice here the relationship between capacity and more general rules about legal capacity in the Roman law of persons).
    • Capacity to make a will [note specifically the exclusions]
    • Capacity to witness a will [note specifically the relationship between witnesses here and more general rules about legal capacity].
    • Capacity to take under a will [inheritance – the rules here tell us much about Roman society].
  • Different kinds of wills [why were they required? Reflect on the situations in which these arose]
    • Notice here specifically the changes introduced in the late empire.
    • What were the legal rules applicable to the appointment of the heir? What was the significance of these rules?
    • Set out and explain the different categories of heir under the Roman law of testamentary succession. Can you explain the differences?
      • Notice that the further the heir is removed from the immediate family of the deceased person, the more formal the requirement of acceptance of the inheritance.
    • What are the main differences between an inheritance and a legacy? How could legacies be enforced?
  • What was exheredatio? How could this be done under civil law? And under praetorian invention? What were the consequences at law?
  • What was the querela procedure? Explain how one would institute this process. What was the result if successful?
  • List and explain the ways in which a will could fail. What would the consequences at law be in such cases?
  • List and explain the ways in which legacies could fail. What would the consequences be in such cases?
  • What if the heirs predecease the testator? How did Roman law resolve this problem?
  • Explain the main rules of law governing codicils and trust (fideicommissa) in the Roman law of inheritance.
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