Quart and Querel

"Because parents often disinherit or ignore their children without reason, it was introduced that the children can sue against the will that is contrary to duty" (Justinian, Inst. 2.18pr.). If such a querela inofficiosi testamenti (q.i.t.) was successful, it destroyed the will, made the testator intestatus, as if he had not made a will, and the successful plaintiff received his legal share of the inheritance (intestate share). But with the many competing duties of gratitude, it did not seem to be contrary to duty to leave more to one child or friend and only a quarter of the other child`s intestate share. In this way, the quart secured the will to the extent of the entire intestate share and excluded the lawsuit. Three problems of interpreting the sources arise: 1) What if one of those who would be entitled to q.i.t. sued and the other did not? If, for example, a child was left a quarter (which was sufficient to honour him and exclude him from a q.i.t.), but the other children were left nothing or less than a quarter (so that they were entitled to a q.i.t.), the will remained valid for the intestacy portion of the child who had the quarter in favour of the appointed heir (which could be any third party) (partial recission) and thus secured his appointment as heir. If it was not left, the will was annulled in its entirety (total recission). The intestacy portion of the person who had not sued accrued to the victorious plaintiff. The testator becomes completely intestatus unless he had appointed intestate heirs anyway: in that case it would be pointless to give them ab intestato what they already have as testamentary heirs. With them, the victorious plaintiff succeeds the testator ab intestato. 2) What if the testator gave everything or almost everything to a child or third party during his lifetime, in order to then put the other children into an empty estate (and thus "mock the lawsuit")? The emperors` rescripts gave those who came away empty-handed a quarter of their intestate share. The testator could also have excluded them from the q.i.t. in this way. 3) The literature has accused Justinian`s reform constitution (C. 3.28.30) of being "illogical", which is not the case: those who were left with less than a quarter, but at least something, only received the supplement to the quarter. Those who came away with nothing at all had to sue with the q.i.t., but received their intestate share if they won. The quarter that the q.i.t. excluded is consistently continued: if the testator did not give the full quarter, the law now supplements the quarter to protect the will against annulment. However, anyone who has received nothing must go through the difficult q.i.t. process. Anyone who wins this and can show that there were no serious conflicts with the testator during his or her entire lifetime must receive more than a quarter, namely the intestate portion.