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Roman law, testaments and providing for their children

Private Roman law was influential in the development of the common law in England.  

The Roman law on inheritance and succession was capable of restricting the testamentary freedom of its citizens when it came to making provision for children or anyone else unfairly left out of a will. 

Writing in the eighteenth century English jurist Sir William Blackstone observed in his treatise on the Commentaries on the Laws of England1 that:

 

“The Romans were also 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 or 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 disinherit him effectually:”

Testamentum inofficiosum

The Latin words Testaments or testamentum refer to what we know as a will.  Inofficiosa in Latin refers to being irresponsible or unobliging.  Inofficiousness of a will or testamentum inofficiosum means there was conduct contrary to moral obligation on the part of the will-maker.

As explained by Emmet J of the New South Wales Court of Appeal there existed in Roman law the idea that officiousness of a will reflected a testator’s considerations of fairness when disposing of their property to those who may have a claim on it.2

Under Roman law if a child felt that they had been unfairly left out of a parent’s testamentum (will) or passed over for no valid reason could bring a complaint that the deceased had left an undutiful or irresponsible will (the querela inofficiosi testamenti). 

Children were entitled to make a complaint against parents and vice versa.  Emmet J further explained that

“The right was also given to brothers and sisters of the deceased who had the same father as the deceased, but only if the will appointed a turpis persona (see Institutes 2.18.1). A turpis persona was a person whose occupation or conduct was regarded as disreputable, such as actors, gladiators, prostitutes and brothel owners.”

However from what Blackstone observed above it seems that testators could circumvent their familial moral obligations merely by leaving a token amount to those with a legitimate claim on their bounty.  In doing so it showed that the testator had the presence of mind, they had given thought to who they should leave something to.  It could not then be said afterwards that they lacked capacity.

 

1.  Sir William Blackstone, Of Title by Testament, and AdministrationChapter 32, Commentaries on the Laws of England, Book II,  1723-1780.  New York Garland Pub. 1978, reprint of the 9th (1783) ed. printed for W. Strahan and T. Cadell, London, and D. Prince, Oxford.

2.  Church v Mason [2012] NSWCA 481

Photo: ancient momuments in Rome, B Stead.

B Stead
BHS Legal

Updated 29 September 2021

Important notice: This article is intended for general interest and information only. It is not legal advice and nor should it be used as such. Always consult a legal practitioner for specialist advice specific to your needs and circumstances and rely on that.

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