Legal History of Wills - in The Ancient World

In The Ancient World

The development of Roman law furthered the modern understanding of wills. and led to the development of the law of estates in many European states, greatly aided later by ecclesiastics versed in Roman law.

In Christian tradition, Eusebius and others have related of Noah's testament, made in writing, and witnessed under his seal, by which he disposed of the whole world. Additionally, wills are spoken of in the Old Testament (in Genesis 48), where Jacob bequeaths to his son Joseph, a portion of his inheritance, double to that of his brethren.

The Ancient Greek practice concerning wills was not the same in all places; some states permitted men to dispose of their estates, others wholly deprived them of that privilege. We are told by Plutarch, that Solon "is much commended for his law concerning wills; for before his time no man was allowed to make any, but all the wealth of deceased persons belonged to their families; but he permitted them to bestow it on whom they pleased, esteeming friendship a stronger tie than kindred, and affection than necessity, and thus put every man's estate in the disposal of the possessor; yet he allowed not all sorts of wills, but required the following conditions in all persons that made them:

1. That they must be citizens of Athens, not slaves, or foreigners, for then their estates were confiscated for the public use.
2. That they must be men who have arrived to twenty years of age, for women and men under that age were not permitted to dispose by will of more than one medimn of barley.
3. That they must not be adopted; for when adopted persons died without issue, the estates they received by adoption returned to the relations of the men who adopted them.
4. That they should have no male children of their own, for then their estate belonged to these. If they had only daughters, the persons to whom the inheritance was bequeathed were obliged to marry them. Yet men were allowed to appoint heirs to succeed their children, in case these happened to die under twenty years of age.
5. That they should be in their right minds, because testaments extorted through the phrenzy of a disease, or dotage of old age, were not in reality the wills of the persons that made them.
6. That they should not be under imprisonment, or other constraint, their consent being then only forced, nor in justice to be reputed voluntary.
7. That they should not be induced to it by the charms and insinuations of a wife; for (says Plutarch) the wise lawgiver with good reason thought that no difference was to be put between deceit and necessity, flattery and compulsion, since both are equally powerful to persuade a man from reason.

Wills were usually signed before several witnesses, who put seals to them for confirmation, then placed them in the hands of trustees, who were obliged to see them performed. At Athens, some of the magistrates were very often present at the making of wills. Sometimes the archons were also present. Sometimes the testator declared his will before sufficient witnesses, without committing it to writing. Thus Callias, fearing to be cut off by a wicked conspiracy, is said to have made an open declaration of his will before the popular assembly at Athens. There were several copies of wills in Diogenes Laertius, as those of Aristotle, Lyco of Troas, and Theophrastus; whence it appears they had a common form, beginning with a wish for life and health."

In the Leges barbarorum, where they are unaffected by Roman law, the will, if it existed at all, was of a very rudimentary character. The will is, on the other hand, recognized by Rabbinical and Islamic law.

The early Roman will differed from the modern will in important respects. It was effectual during the lifetime of the person who made it; it was made in public vivâ voce; all knew of the legator's intentions, the testator declaring his will in the presence of seven witnesses; and it could not be changed – these they called nuncupative testaments; but the danger of trusting the will of the dead to the memory of the living soon abolished these; and all testaments were ordered to be in writing.

The objective, as in adoption, was to secure the perpetuation of the family. This was done by securing the due vesting of the breed in a person who could be relied upon to keep up the family rites. There is much probability in the conjecture that a will was only allowed to be made when the testator had no known gentile relatives, unless they had waived their rights. The Romans were wont to set aside testaments, as being inofficiosa, deficient in natural duty, if they disinherited or totally passed by (without assigning a true and sufficient reason) any of the children of the testator. But if the child had any legacy, though ever so small, it was a proof that the testator had not lost his memory nor his reason, which otherwise the law presumed. Hence probably has arisen that groundless, vulgar error of the necessity of leaving the heir a shilling, or some other express legacy, in order to effectually disinherit him; whereas the modern law, though the heir, or next of kin, be totally omitted, admits no querela inofficiosa, to set aside such testament.

It is certain from the text of Gaius that the earliest forms of will were those made in the comitia calata and those made in procinctu, or on the eve of battle. The former were published before the comitia, as representative of the patrician genies, and were originally a legislative act. These wills were the peculiar privilege of patricians. At a later time the form of plebeian will developed (irs/amentum per aes ci libram), and the law of succession under testament was further modified by the influence of tile practor, especially in the direction of recognition of fideicommissa similar in some respects to testamentary trusts. Codicilli or informal wills, also came into use, and were sufficient for almost every purpose but the appointment of an heir.

In the time of Justinian a will founded partly on the jus civile, partly on the edict of the praetor, partly on imperial constitutions and so called testamentum tripertitum, was generally in use. The main points essential to its validity were that the testator should possess testamentary capacity, and that the will should be signed or acknowledged by the testator in the presence of seven witnesses, or published orally in open court. The witnesses must be idonei, or free from legal disability. For instance, women and slaves were not good witnesses.

The whole property of the testator could not be alienated. The rights of heirs and descendants were protected by enactments which secured to them a legal minimum, the querela inofficiosi testamenti being the remedy of those passed over. The age at which testamentary capacity began was fourteen in the case of males, twelve in the case of females. Up to 439 A.D. a will must have been in Latin; after that date Greek was allowed.

Certain persons, especially soldiers, were privileged from observing the ordinary forms. The liability of the heir to the debts of the testator varied during different periods. At first it was practically unlimited. The law was then gradually modified in favour of the heir, until in the time of Justinian the heir who duly made an inventory of the property of the deceased was liable only for the assets to which he had succeeded. This limitation of liability is generally termed by the civilians beneficium inventarii.

Something like the English probate is to be found in the rules for breaking the seals of a will in presence of the praetor. Closely connected with the will was the donatio mortis causa, the rules of which have been as a whole adopted in England (see below). An immense space in the Corpus juris is occupied with testamentary law. The whole of part v. of the Digest (books xxviii.-xxxvi.) deals with the subject, and so do a large number of constitutions in the Code and Novels.

The effect of Christianity upon the will was very marked. For instance, the duty of bequeathing to the Church was inculcated as early as Constantine, and heretics and monks were placed under a disability to make a will or take gifts left by will. A will was often deposited in a church. The Canon law follows the Roman law with a still greater leaning to the advantage of the Church. No Church property could be bequeathed. Manifest usurers were added to the list of those under disability. For the validity of a will it was generally necessary that it should be made in the presence of a priest and two witnesses, unless where it was made in pias causes. The witnesses, as in Roman law, must be done. Gifts to the Church were not subject to the deductions in favour of the heir and the children necessary in ordinary cases. In England, the Church succeeded in holding in its own hands for centuries jurisdiction in testamentary matters.

This is practically in accordance with the definition of Modestinus in Digest xxviu. I, 1, voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velit. Ancient Law, chap. vi. dii. ioi.

The Roman law of wills has had considerable effect upon English law. In the words of Sir Henry Maine, "The English law of testamentary succession to personalty has become a modified English form of the dispensation under which the inheritances of law. Roman citizens were administered." At the same time there are some broad and striking differences which should be borne in mind. The following among others (as of 1911) may be noticed:

1. A Roman testator could not, unless a soldier, die partly testate, and partly intestate. The will must stand or fall as a whole. This is not the case in England.
2. There is no one in English law to whom the universitas furis of the testator descends as it did to the Roman heirs, whose appointment was essential to the validity of a formal will, and who partook of the nature of the English heir, executor, administrator, devisee and legatee.
3. The disabilities of testators differed in the two systems. The disability of a slave or a heretic is peculiar to Roman law, of a youth between fourteen and twenty-one to English law.
4. The whole property may be disposed of in England; but it was not so at Rome, where, except by the wills of soldiers, children could not be disinherited unless for specified acts of misconduct. During the greater part of the period of Roman law the heir must also have had his Falcidian fourth in order to induce him to accept the inheritance.
5. In English law all wills must conform to certain statutory requirements; the Romans recognized from the time of Augustus an informal will called codicilli. The English codicil has little in common with this but the name. It is not an informal will, but an addition to a will, read as a part of it, and needing the same formalities of execution.
6. The Roman testatum applied to both movables and immovables; in England a legacy or bequest is a gift of personalty only, a gift of real estate being called a devise.
7. The Roman will spoke from the time of making; the English speaks from the time of death. This difference becomes very important in case of alteration in the position of the testator between the making of the will and his death. As a rule the Roman will could not, the English can, pass after-acquired property.