Legal Definitions - praeteritio

Praeteritio refers to a situation, particularly in historical Roman law, where a person making a will (the testator) implicitly or unintentionally excludes a direct heir by simply failing to mention them in the will, rather than explicitly stating that they are to receive nothing. In certain legal systems, especially historically, such an omission could have significant legal consequences, potentially invalidating the will or parts of it, because direct heirs were presumed to have a right to inherit unless explicitly disinherited.

• Example 1: Omission of a Child

  Mr. Davies drafts his last will and testament, meticulously detailing how his assets should be divided between his wife and his eldest daughter. However, he completely forgets to mention his younger son, who is still alive and a direct heir. Mr. Davies did not intend to disinherit his son; he simply overlooked including him in the document.

  This scenario illustrates praeteritio because the son was not explicitly disinherited but was instead implicitly excluded by being entirely omitted from the will. In a legal system recognizing this concept, the son could potentially challenge the will, arguing that his omission was a form of praeteritio, which might lead to the will being partially or fully invalidated.

• Example 2: Unintended Consequence in a Specific Legal Framework

  In a jurisdiction with laws similar to historical Roman law concerning direct heirs, Mrs. Rodriguez, a wealthy widow, writes a will leaving her entire estate to her favorite charity. She has two adult children who are considered "sui heredes" (direct heirs under her legal power) in such a system. Her will makes no mention of her children at all, neither to include them nor to explicitly disinherit them.

  This is an instance of praeteritio. Mrs. Rodriguez did not explicitly disinherit her children; she merely failed to include them in her will. Under a legal framework that recognizes praeteritio, this omission could potentially invalidate her will, as direct heirs were often presumed to have a right to inherit unless explicitly denied.

• Example 3: Modern Relevance of the Concept

  Sarah and Mark are married and have one child, Lily. Sarah drafts a will stating that if she passes away, all her assets should go to Mark. She does not mention Lily at all in the will, assuming Mark would provide for her. Sarah did not intend to cut Lily out of her inheritance, but simply focused on her spouse as the primary beneficiary.

  While modern wills typically operate under different rules than ancient Roman law, the underlying *concept* of praeteritio highlights the potential issues arising from simply omitting a direct heir. In some jurisdictions, even today, a child might have a legal right to a portion of an estate (a "forced share"), and simply not mentioning them could lead to legal challenges, even if the will doesn't explicitly disinherit them. This example shows how the principle of ensuring direct heirs are accounted for, whether by inclusion or explicit exclusion, remains relevant in estate planning.