The Will under the Roman Succession Law and its Reception in the Law of the Countries in the Period of the Middle Ages

Abstract

The article carries out the comparative analysis of the main criteria to the will in a succession law of the Roman State, in particular, concerning conditions of its reality, formal requirements to a circle of successors, procedures of drawing up and types of wills. It has been established the essence of the principle of freedom of the will. In the XIIth – XIIIth centuries in Western Europe one could fnd the frst codifed collections of laws, the reception of Roman Law, emergence of a municipal right, as well as extension of Canon Law. The Roman Law becomes one of the sources of the medieval right. It has been investigated the reception of legal norms of the will in a medieval Canon Law of Europe. With introduction of Christianity a part of property which belonged to the testator was ceased to be buried and burnt together with a corpse. Instead, it was distributed on charity for the beneft of soul of the dead. The Canon Law of wills was established based on jurisdiction of church and ecclesiastical courts, and the will was considered as the religious act of expression of the last will of the dead. Freedom of the will was considered as freedom to make contributions on religious and charitable affairs. As for the wills, the Roman Law was signifcantly complemented by canonists with two important institutes: an ex- ecutor of the will and appointment of the managing director to distribute property of the person who died without will. The Canon Succession Law enforced protection of interests of the wife of the dead and his children against deprivation of heritage by the testator. The successor was also granted the right to refuse inheritance accep- tance if duties which arose in this regard exceeded his/her opportunities. Thanks to the reception of Roman Law which took place in medieval Western Europe ca-nonists created the new right of wills — partially based on German-Christian institutes and partially on the classical Roman Succession Law which was known to church and was used by it long ago. If there was no will, the Roman Succession Law applied the norms similar to the institute of the German National Law, i.e. its main goal was to provide the successor of the head of the family. However the Ro- man Law defned legal aspects of inheritance much more broadly.