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Intestate succession

These rules applied when the individual died without a valid will.


Ius civile - intestate succession

Three classes of individuals who could inherit property of the deceased.

1) Sui heredes - those so closely related to the deceased they became independent upon the death of the individual. E.g. children of the deceased who were not emancipated, or the wife in a marriage cum manu.

2) Adgnatus proximus - if no sui heredes, next class was the nearest agnate. This was the nearest relative on the agnatic line, i.e. nearest relative from male descent. E.g. brother and sister of the deceased.

3) Gens - simply means 'clan', and refers to the whole family related to the deceased. Tracing in gens was only through the agnatic (male) line.


Bonorum possessio

This was a remedy issued by the praetor, separate from inheritance in intestate succession under civil law. Praetor was unclear who had the best claim (speculative grant), so devised his own categories - broadly approximating with the ius civile, but with some changes - for priority as to whom would be granted possession.

Bonorum possessio was not decisive of the issue - simply put C in the position to obtain remedies that would give them legal possession. Ownership question resolved in trial.


Praetor classes

1) Unde liberi - children of the deceased. Praetor included emancipated children.

2) Unde legitimi - legal heirs under the TT other than children. If nearest agnate did not claim bonorum possessio, no other agnate could claim under this class.

3) Unde cognati - if nearest agnate did not claim/children, then praetor opened claims to bonorum possessio to relatives on both male and female genetic lines.

4) Unde vir et uxor - husband/wife of the deceased could claim if no relatives claimed bonorum possessio.


Cum re

This applied where bonorum possessio was granted if there was no civil heir, or praetor intervened to change previous inequitable ruling.

Position of grantee = stronger since no civil heir can come and stake a better claim under the ius civile.


Sine re

Bonorum possessio merely granted provisionally, subject to appearance of civil heir.. Civil heir would prevail over grantee sine re since ius civile took priority over ius honorarium.


SC Tertullianum

Resolution by the Senate that where there was no father/brother of the deceased, then the mother or sister could inherit as nearest agnate. If both mother and sisters survived, mother received half and sisters received half.


SC Oprhitianum

Major departure from old principle of agnatic succession since it gave children the primary right to succeed their mother's estate.


Justinian reforms - intestacy

Justinian overhauled the classes which could claim for intestate succession:

1. Descendants
2. Ascendants and full-blood siblings
3) Half-blood siblings
4) Nearest other collaterals
5) Surviving spouse


Testate succession

If will was validly executed then property passed according to the wishes of the testator.


Will - key requirements

1) Appointment of an heir.
2) Testator had capacity.
3) Formalities complied with.


Appointment of heir

Will was invalid if an heir was not appointed. If appointee died, another had to be named for the will to be valid.



1) Testator had to be a Roman citizen of age and with commercium to make a will.

2) Heir needed to have testamenti factio - capacity to inherit under a will.

3) Witness needed to have capacity.


lex Voconia

169 BC. Women in the wealthiest class of citizens could not be appointed heir.


Soldiers - will

Less stringent requirements for soldiers. Needed to be an intention to give to an heir under a will, and witness could not be the sole appointee.



Exheredatio - individuals could be excluded from wills under Roman law.

Ius civile position = sui had to be expressly named or expressly disinherited in the will. Failure to do so resulted in the will being invalid.

Sons had to be disinherited by name, but daughters could be disinherited generally.


Ius honorarium - disinheritance

All male sui had to be appointed or disinherited by name, but a general clause sufficed for other sui. If the will did not satisfy these requirements, the omitted sui could seek bonorum possessio contra tabulas.



Legal claim developed in the late RR in which a will could be challenged for excluding an individual completely or inadequately providing for them.

Classical period = querela could be brought for inadequate provision, as well as total exclusion. Lex Falcidia - provision = inadequate if it amounted to less than 1/4 what would have been given on intestacy.

Justinian restored position that the querela claim was only available where C was totally excluded from the will.


Legitima portio

Justinian kept this action for those who had been left less than what they were entitled to under the will.

Claim that rightful heirs could make for inadequate provision in the will, but was separate from the querela.



Will could provide that certain property is transferred to beneficiaries of legacy who are not appointed heirs.

1) Legacy per vindicationem - heir is obliged to transfer specific piece of property to legatee.

2) Legacy per damnationem - heir is merely obliged to transfer the value of the property to the legatee.


Necessary heirs

Those obliged to accept under the will.

Problem for legacies - all other heirs could refuse to take under will, so if legacies left them with mainly liabilities and little benefit then the legatees would not be able to take and testator's will frustrated.


Lex Falcidia

Legacies could be bequeathed by the heir as per the testator's wishes, but ONLY if the heir was entitled to benefit from at least 1/4 of the estate under the will.

If the legacies exceeded 3/4 of the value of the estate, they were reduced proportionately so that the heir took at least 1/4.



These were the broad equivalent of trusts under English law. Will could also provide that property was held on trust for the benefit of beneficiaries by the heir.

Augustus imposed rule that heir could not take under will unless they performed the fideicommisum as the testator provided.


SC Trebellianum

Codified the practice of mutual stipulations between the parties (whereby beneficiary promised that the heir could use trust property for reasonable expenses incurred in performing the trust). Made the execution of fideicommissa simpler for the heir.


SC Pegasianum

Applied the lex Falcidia position for legacies to fideicommissa as well. Heir under trust had to be entitled to at least 1/4 of estate in order to execute any fideicommissa.