Does Your Child Associate With Actors Or Gladiators? You Can Exclude Them From Your Will.* [AKA What Have The Romans Ever Done For Us?]

In conducting research on estrangement cases in family provision claims, for our mutual edification of How The Romans Would Have Done It, I wish to share notable comments by the Honourable Justice Emmett, in Burke v Burke [2015] NSWCA 195, wherein his Honour notes, at paragraph 125,

“the specific causes for the disinheritance of children laid down by Justinian [Eastern Roman emperor from 527 to 565] in Ch III of Novel 115, enacted in AD 542. …

[Author’s note: Select emphasis added in bold]

‘Therefore we order that no father or mother, grandfather or grandmother, great-grandfather or great-grandmother shall, under any circumstances, forget to mention their son, daughter, or other descendants in their wills, or disinherit them unless they have left them, by donation, legacy, or trust, or in some other way, the shares to which they are entitled by law; or it has been proved that their children are ungrateful, and have expressly stated the instances of their ingratitude in their wills.‘

“Novel 115 then set out the only 14 grounds upon which descendants should be considered ungrateful: no other basis of ingratitude could be relied upon. The 14 grounds of ingratitude might be summarised as follows:

1. the child has laid violent hands upon parents;
2. the child has heaped gross insults upon parents;
3. the child has brought criminal accusations against parents for offences that did not involve the Emperor or the State;
4. the child is a malefactor or consorts with malefactors;
5. the child has attempted the life of his parents;
6. the child, being a son, has criminal intercourse with his step-mother or his father’s concubine;
7. the child, being a son, has acted as informer against his parents and has subjected them to great expense;
8. the child who has the capacity to do so refuses a request by an ill parent to provide security for the debts of the parent;
9. the child, being a son, prevents his parents from making a will;
10. the child, being a son, continues to associate with actors or gladiators, contrary to the wishes of his parent, unless that is the profession of the parent;
11. the child, being a daughter, refuses to be married and prefers to lead a life of debauchery, where the parent desires to provide the daughter with a husband and bestow a dowry;
12. the child fails to treat a parent who has become insane with the proper respect and care (assuming the parent is subsequently cured of insanity);
13. the child does not pay a ransom demanded by the captors of a parent retained in captivity;
14. the child does not acknowledge the Catholic faith and does not commune in the church where the true religion is taught and where the doctrines of the holy Councils of Nicaea, Constantinople, Ephesus and Chalcedon are accepted.”

His Honour concludes,

“While I hasten to add that I do not suggest that all of the above grounds would be appropriate for New South Wales in the 21st century, such criteria would leave much less to the difficult exercise of discretion by judges.”

*If your will was prepared in Eastern Rome in AD 542

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