Legal Definitions - substitutio heredis

Substitutio heredis is a Latin term from Roman law that describes the appointment of a secondary or contingent heir in a will. This provision ensures that if the primary heir named in the will is unable or unwilling to accept the inheritance, a designated "backup" heir will step in to receive the estate. It's a mechanism to prevent an estate from becoming heirless and to guarantee that the testator's wishes for their property are carried out.

Here are some examples illustrating this concept:

• Example 1: Standard Contingency

  Imagine a woman named Sarah who writes her will. She states, "I leave my entire estate to my son, David. However, if David does not survive me or chooses to decline the inheritance, then I leave my entire estate to my sister, Emily."

  In this scenario, Emily is the substitutio heredis. She is the designated backup heir who will inherit Sarah's estate only if David, the primary heir, is unable or unwilling to do so. This provision ensures that Sarah's estate has a clear recipient even if her first choice cannot inherit.

• Example 2: Conditional Inheritance

  Consider a will drafted by Mr. Henderson, which includes the clause: "I bequeath my family farm to my granddaughter, Olivia, provided she maintains the property as an active agricultural enterprise for at least five years after my passing. If Olivia fails to meet this condition, the farm shall pass to my nephew, Robert."

  Here, Robert serves as the substitutio heredis for the farm. He is the contingent heir who will inherit the property only if Olivia, the primary heir, does not fulfill the specific condition outlined in the will. This demonstrates how a substitute heir can be triggered by the failure of a condition attached to the primary inheritance.