Protection against Being Passed Over or Disinherited in Roman Law

Abstract

Abstract What is today referred to as ‘compulsory portion’ or ‘forced heirship’ was subject to a very complex regulation in Roman law. The development went from family succession to freedom of testation and subsequently led to the establishment of a balance between the testator’s freedom of disposition over his property and the ‘natural claims’ of his closest relatives to benefit at least to some extent from the estate. In the process, the Roman lawyers developed a number of interesting ideas, among them, in particular, protection of descendants by means of form requirements; the availability of a querela inofficiosi testamenti (complaint concerning an undutiful will); and the establishment of a minimum quota to which a testator had to appoint his closest relatives (‘legitima’) as well as the introduction of an actio ad supplendam legitimam for cases where the testator had failed to do so. Justinian also saw the necessity to provide for the testator’s widow; she could, under certain circumstances, demand one quarter of the estate by way of statutory legacy. Unfortunately, Justinian, in his Novel 115, failed in his attempt to simplify and streamline the law. From its inception in the High Middle Ages, therefore, legal scholarship based on the ius commune was faced with considerable difficulties in the application of the Roman rules.