‘Have you made your will yet?’ is a question most of us have been asked at some time or other. People are often surprised how many people in past years made wills – almost as a final farewell to the world. For the family, local and social historian they can be a goldmine of information – as long as you know where to find them!
Over the years inheritance of land has generally followed either the common law where the eldest son gets all land, after the widow is taken care of. However, if there were no sons, the daughter(s) shared it all. This is the law of Primogeniture. The fine details did, of course, change through the centuries but never radically – except that is where local ‘customary’ laws applied. These quite often stipulated that the youngest son got all the land or all the sons shared equally. Because this was so ingrained, the inheritance of goods was often the real subject of early wills. If the family was poor, and/or had little or nothing of value to pass on, there was no need to get a will proven in court.
Will making has never, actually, been compulsory. If no will was left, the next of kin may only have gone to the trouble of seeking a grant of administration when there were complications such as debts, or if a dispute was likely. Many of the richer people did not make wills for a variety of reasons – the common reason for this being because they were women. Until the Married Women’s Property Act of 1882 married women did not, in general, have any control over their property while their husbands were alive.
In the past it was not practical for people to plan their lives with any confidence. They were quite likely to lose a spouse prematurely; they had less control over how many children they had and the loss of at least one child was more a probability than a possibility. People were less likely to make a will at all, and if they did they would leave it as late as possible to avoid the unnecessary expense of making changes and to make sure that it was their final wishes that were acted upon.
It was not infrequent for people to leave making their wills so late that they had to be made orally in front of witnesses on the deathbed itself. These ‘nuncupative’ wills were written down at some point, but they were often not signed or sealed by the person dying. Soldiers and sailors on active service generally made noncupative wills. Nevertheless, if conducted properly, they were considered valid.(Thomas Braithwaite of Ambleside making his Will, by an unknown artist, c1607.The 31-year-old, on the verge of death, sits up in bed. Behind, inscriptions in English, Latin and French reveal his piety. His friend steadies the paper on which he inscribes his last wishes.)
Tradition, ritual and legal mystique grew up around will making. It became more than a formal list of property and how it was to be disposed of. It combined also a religious declaration and sometimes a leave-taking of the family. Very often the style of the will, if not the sentiments themselves, was that of the person who wrote it down rather than of the person whose property was being divided.
It is worth remembering that daughters would often have property settled on them when they were married, and this would not be mentioned in the will. It might then seem to the unwary that a daughter had been overlooked.
One should also remember that the use of a phrase such as ‘I hereby revoke all other wills’ was required to make the will valid. It does not necessarily mean there was a previous will.
Charitable bequests are very common, and can give clues to the place of origin of the testator.
Older wills often refer to the widow’s ‘thirds’, which means her legal entitlement to one third of her husband’s real estate for life. Sometimes the wealthy would bequeath a sum of money instead of the ‘thirds’ so that the real estate could be left entirely in the hands of a son. Often, provision for a wife would have been established long before a will was made, and then there would be no need to mention what it was. You can search and download Prerogative Court of Canterbury wills – 1384 to 1858 – by going to http://www.nationalarchives.gov.uk/willsandprobate. Also hmcourts-service.gov.uk/cms/1226.htm will also open up many avenues of research.
There is one other participant that we need to take into account – the Church. Alongside the criminal and civil courts and the courts of equity was a whole network of some three or four hundred ecclesiastical courts whose activities affected many aspects of our ancestor’s lives. Until 1858 church courts heard many matters now regarded as the province of the secular authorities. The best known of these are probably related to matters of probate of wills and the granting of administrations. These courts also heard cases of defamation and divorce as well as matters more strictly concerned with church affairs. Sometimes these courts were known as the “bawdy courts”, as the subject matter was quite often sexual in nature.