The Roman and Civilian Origins of the Conditio Si Testator Sine Liberis Decesserit in Scots Law

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This article examines and evaluates the Roman and Civilian origins of the Scottish rule of succession known as the conditio si testator sine liberis decesserit. The article focuses on the rule that is implied by law where the will itself is silent but, as the legally implied rule probably seeks to emulate the express provision of a testator, the article starts by setting out the position as regards express testamentary provision. The original Roman source of the rule is identified; thereafter the article examines and comments upon the lengthy period of development of the Scottish rule up to its final form at the start of the twentieth century. That latter point in time is when the Scottish rule had received much of its modern form. This article therefore forms a basis for the understanding of modern Scots law.
Original languageEnglish
Pages (from-to)1-35
Number of pages35
JournalEdinburgh Law Review
Issue number1
Publication statusPublished - 1 Jan 2015

Bibliographical note

For most useful comments on and assistance with earlier drafts, the writer thanks Sheriff Douglas Cusine, Professors John Ford, George Gretton, Kenneth Reid, and Marius de Waal, Dr John Stannard, Bruce Merchant OBE and an anonymous referee. The faults remain those of the writer. For assistance in access to Session Papers, the author thanks Denis Garrity, advocate.


  • Roman Law
  • Scots Law
  • Private Law
  • Succession Law
  • Testamentary Law
  • conditio si testator sine liberis decesserit


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