The origin of wills under the English law

Wills are written by people to express how they wish their property and money to be inherited when they die. Because people usually leave legacies to close family, they are immensely useful to genealogists wishing to learn about and prove family relationships.

WHAT WILLS ARE

While wills can sometimes enable us to trace family trees in their own right, they are most often used to clarify and prove pedigrees constructed from General Registration records, censuses and parish registers. They can also add colour to family trees, detailing unusual belongings, eccentric desires and suggesting how members of the family felt about each other.

HOW WILLS DEVELOPED

In the Middle Ages, there were very strict rules governing the inheritance of land and property (‘real estate’), which usually went to the eldest son although in parts of England real estate was divided between each all children, with the youngest receiving the hearth (‘gavelkind’, found particularly in Kent), or went to the youngest son (‘borough English’). The wife would customarily receive a third for life (or half under gavelkind).

The personal estate could be bequeathed, but a third had to go to the widow and at least a third to the children. To get around the rules, people passed the land to trustees who held the land under the terms specified in a deed or a will, and in practice allowed it to be used by the person to whom the original holder would have bequeathed it had he been free to do so.

The Statute of Wills of 1540, followed by the Wills Act of 1837, laid down the rules under which most wills you will encounter were made. From 1540, men aged 14 or more and women aged 12 or more could write wills, until 1837 when the age for both sexes was raised to 21, those who were excommunicated, mad, or prisoners could not write wills and, while spinsters and widows often wrote wills, married women seldom did until 1882, because until the Married Women's Property Act of 1882 they could not legally own anything.

WRITING A WILL

In a will, the writer (‘testator’, or ‘testatrix’ if female) nominated executors to distribute their property after their death. The executors would take the will to a court to ‘prove’ it, by swearing that it was authentic and represented the deceased's last wishes and undertaking to fulfil the instructions expressed.

Wills were usually written by lawyers following their clients’ instructions but sometimes they were dictated by testators, usually on their death beds. These were called nuncupative wills and, when they were proved, they were often accompanied by statements from a couple of people who had been present. After 1837, nuncupative wills were only valid if made by members of the armed forces before killing in action.

Original wills are held in public archives, unless they were never proved-if there was no likelihood of a dispute, families often decided to avoid the cost of going to probate -in which case they may be in family or solicitors' papers. Some were taken to church courts but the process of probate was never seen through. Family papers may often, however, contain probate copies, kept by the executors to enable them to do their jobs properly.

FINDING A WILL

The wealthier a family was, the more likelihood there is of them having left wills. However, some very rich people never left wills and, although many poor people did not either, plenty did. If you are tracing a family of labourers, it is unlikely you will find wills for them, but you should never assume this because some did and you could miss out on a very great deal of interesting and useful information if you never look.

Equally, you may have traced a family tree perfectly well using other records and decide you do not need to look for wills. Again, you might just as well not have bothered starting the exercise at all, as will often provide for more colour and interest than most of the other documents genealogists use.

Up to 1898, the value of the estate would be recorded in the probate details. This was the value of the personal estate (not freehold land, unless it had been rented out for a fixed term of years) before deduction of funeral expenses and debts. After 1898 real estate was included unless it was held in trust. Up to 1881, the value was usually quoted as ‘under’ a round sum, such as ‘under £700’, after which the exact sum was stated.

LETTERS OF ADMINISTRATION

If someone dies without leaving a will, they are said to be intestate. Close relatives, often the deceased's husband or wife, or sometimes creditors or close friends, could, and indeed still can apply for authority to allow them to settle the estate. The resulting letters of administration provide details of who died and when, and where they lived, and the person or people (with places of residence and usually their relationship to the deceased) to whom the power of administration was granted, and the date of the grant. They are not nearly as useful as wills, but usually provide a little information that can still be very helpful in tracing a family tree.

There have always been strict laws as to how intestates’ property is to be distributed. Widows were entitled to a third of their husband's estate, with the remainder going equally to the children, although under gavelkind in Kent they received half if there were children and, since1926 this rule has applied to the whole country. After the spouse, the children inherit, or if any of them are dead their own offspring inherit their parent’s share. If there is no spouse, children or other descendants, the estate passes to the deceased's parents, or if they are deceased to the deceased’s siblings or descendants of deceased siblings. This is followed then my grandparents, and failing them siblings or descendants of siblings of the parents, or failing that siblings or descendants of the siblings of the grandparents (and so on), always in equal shares.

WILLS FROM 1858 ONWARDS

From 12 January 1858, all wills were proved and administrations granted by local probate offices and the records collated by the Principal Probate Registry(PPR), now termed the Principal Registry of the FamilyDivision. Wills and administrations were indexed in separate annual, alphabetical volumes up to 1870, after which both were indexed together in the same annual alphabetical volumes. The volumes are easy to search, providing sufficient detail in almost all cases to determine whether you have found the right person. The annual indexes state:

• Name and residence of deceased
• Date of death
• Where the will was proved or letters of administration granted.
• Value of a deceased’s estate
• Occupations of deceased and executors or administrators are often stated.
• Residence of executors or administrators and, between 1858 and 1892, their relationship (if any) to the deceased.

WILLS BEFORE 1858

Before 1858, wills were proved by church courts, also called ecclesiastical courts, and unfortunately, even if you know where your ancestor lived it is not always obvious which church would have proved their will.

England and Wales, and all English and Welsh subjects dying abroad, not least soldiers and sailors, fell under the jurisdiction of the Archbishop of Canterbury. Anyone who wished could take a will to the Archbishop’scourt, the Prerogative Court of Canterbury (PCC), which (somewhat confusingly) was at Doctor's Commons near St Paul's Cathedral, London. This was often the option of the wealthy, for whom the PCC had a certaincaché. During the Cromwellian Commonwealth (1653-60) it was renamed the Court of Probate of Wills and Granting of Administrations and was the only place where these activities could take place.

The Archbishop's own archbishopric itself only extended as far north of the River Trent, beyond which probate jurisdiction fell to the Archbishop of York. If someone had property worth more than £5 in both archbishoprics, their will had to be proved at the PCC. Because government stock held at the Bank of England was deemed to be property in London, Bank of England clients from all over the country had to have their wills proved at the PCC, and after 1812 the Bank of England did not recognize any wills not proved there. However, if the person's property was only within Cheshire, Cumberland, Durham, Northumberland, Westmoreland and Yorkshire, it could be proved at the Prerogative Court of the Archbishop of York (PCY) or, before 1577, at his Exchequer Court.

OVERCOMING PROBLEMS

Remember that wills are arranged by date of probate, not the date of death, so if your ancestor died in 1720 but their will was not proved until 1740, then that is the year in which the will appears in the index. Generally, the broad periods of time covered by the indexes make them easy to search and it is usually straightforward to find both the person you want and also to note others of the same name who could be relatives. It is not uncommon to search for an ancestor's will and to end up finding wills for their parents and grandparents in the same index.

Indexes seldom take variant spellings into account, and sometimes indexers may have mistranscribed a testator’s name, so you must be as alert to these problems, as when conducting any other searches.

If you are lucky, you will find wills and associated documentation relating to your direct ancestors. You can then enjoy obtaining photocopies or even photographs of the records, and seeing how much they will tell you about your ancestors’ lives. Do not forget, however, that much of the wording itself was usually imposed on the testator by lawyers and clerks. When the will of your farmer ancestor states. I devise and bequeath unto my eldest son Thomas my black coat', he probably said something much more like ‘and I want Tommy to have this ‘ere coat’. Equally, you may encounter much legal jargon, which will have little bearing on your ancestors’ true lives and can often be safely ignored.

Wills are excellent tools for searching for ancestors. Your earliest known forebear might-and probably shall-be mentioned in a will written by someone else of the same surname, such as a grandfather, uncle, brother, nephew or cousin. Therefore an ancestor who died in 1760 could be mentioned in a will written before 1760 but not proved until years after, so keep on searching. Equally, a will mentioning one of your ancestor’s children as a cousin can point the way back to a line of relatives and thus a common parish of origin.

Think too about your ancestors' other relatives. You are as likely to be left bequests by your mother's family as your father’s. If you have found a marriage which you suspect is that of your ancestor's parents, look for wills for people with the wife’s maiden name and you may come across your ancestor's maternal grandfather or uncle. If your ancestor came from a small village and you are completely stuck, look for wills of anyone else living in the same place, and before long you will probably find your ancestor mentioned as a relation, neighbour, witness or executor: this might provide the clue you need.

Searching wills. The technique when searching wills in such a speculative way is to make very brief genealogical abstracts, recording only the names, relationships and places that are mentioned. In the foregoing example, all you need note is 'son Thomas'-the fact that he was due to inherit a coat is, at this stage, irrelevant. Should the will subsequently turn out to fit into your family tree, you can always make a more detailed abstract of it later.

Some counties are compiling will beneficiary indexes. Essex RecordOffice has one covering all names appearing in wills written by people in the county of Essex (except those proved in the PCC) 1675-1858. Such indexes can help you accomplish the searches suggested above in a very short time.

Destruction of wills for some areas during Second World War bombing. Those for Somerset, Devon and Cornwall from before 1858, for example, were almost destroyed in the bombing of Exeter in 1942. In such cases, surviving abstracts and copies that had already been made of will have been collected together and information on a manuscript of published sources for these can be obtained from the relevant record offices. Copies of all wills sent to the Estate Duty Office from 1796 have been returned to these three county record offices.

PAPERWORK ATTACHED TO WILLS

Wills and letters of administration could generate much other paperwork. In some dioceses (Chester, for example), this tended to be filed with the wills and administrations while in others it was filed separately and so much harder to access.

WILLS OUTSIDE ENGLAND AND WALES

Scotland

Until 1868, the inheritance of land was rigidly fixed, going automatically to the eldest surviving son (or his heir), or if there were no song lo the eldest surviving daughter, so technically there were no wills (which bequeath land), but only testaments, whereby people could bequeath their movable goods to whomever they liked. The equivalent of a letter of administration, appointing an administrator to distribute the goods of someone who had died intestate, was known as a testament dative.

Probate matters were dealt with in church courts until 1560 when, unlike England and Wales, probate was handed over to secular commissary courts or commissariats under the overall jurisdiction of the Principal Commissariat of Edinburgh, which also dealt with Scots who had goods in Scotland but who had died elsewhere.

In Scotland, there are also services to heirs (also called retours). Mostheritable land simply passed from father to eldest son, but in cases where it did not (e.g. grandchildren inheriting from grandparents because their parents were dead, nephews inheriting from childless uncles and so on), it was common to record the right with a retour. Retours were also used to appoint ‘tutors’ or guardians for fatherless children (‘pupils’). Those pre-1700 are in Latin and very awkward to use.

IRELAND

Irish probate worked in the same way as in England and Wales, with wills being proved in the consistory courts of the Church of Ireland bishops (there were no archdeaconry courts and very few peculiar courts), under the overall jurisdiction of the prerogative Court of Armagh, the equivalent of the PCC. In 1858, a Principal Probate Registry was established in Dublin. As previously stated the great disaster to Irish genealogy was the destruction of records during the IRA's bombing of the Four Courts in 1922.

The indexes to wills and administrations for all the courts before 1858 survive and at least give the names and addresses of testators, and the year of probate, so even if you cannot read the will you shall still know that someone of a certain name and residence died in or about a certain year. In fact, many wills had been abstracted by solicitors, family archivists and genealogists on an ad hoc basis and, after the disaster, about 20,000 of these were collected together at the NA, where they are indexed.

THE CHANNEL ISLANDS

In Jersey, wills up to 1949 were proved by the EcclesiasticalCourt of the Dean of Jersey.

Guernsey wills are proved by the Ecclesiastical Court of the Bailiwick of Guernsey, St Peter Port.

ISLE OF MAN

Wills and administrations were proved in or granted through either the Consistory Court of Sodor and Man or archdeaconry Court of the Isle of Man. Unlike the rest of Britain, the church did not relinquish control over wills until1884, when probate was transferred to the Manx High Court of Justice.

By: Navin Kumar Jaggi & Gurmeet Singh Jaggi