Knowledge base

Wills and Divorces

Wills and probate

• Introduction
• Dates to remember
• Wills and probate - obligations
• Understanding a will after 1858
• Wills - the legal jargon

Introduction

Findmypast.co.uk would like to thank Your Family Tree magazine for kindly contributing this article.

Many people believe that historically only the rich and famous (or infamous) made wills, but many ‘ordinary’ folk also left them. Here’s our guide to finding and using wills for family history

The search for wills and probate records falls within two distinct periods in England and Wales - before and after 11 January 1858. From the 14th century until 10 January 1858 the proving of wills came under the jurisdiction of the Church, and so can be found deposited with the records of the ecclesiastical courts. On 11 January 1858, the Probate Act of 1857 came into force, thereby making the proving of wills and probate a civil matter.

The Court of Probate was established with probate registries in London and throughout the country. Since 1970 it has been part of the Court of the Family Division, and District Probate Registries can often be found within these court buildings.

For wills proved after 1858, if you know the name of the deceased person, the name of the court and the date on which probate was granted, a copy of the will can be purchased either by:

• A personal visit to Court of Probate at High Holborn
• Ordering from your local District Probate Registry
• By post from the Probate Registry at York (which includes a four-year search).

Each copy currently costs £5.00 (as at March 2008) and can vary in length from just a few lines up to 20 pages. A person leaving a will dies testate and the granting of probate enables his or her executor or executrix to carry out the terms of the will. A person who does not leave a will dies intestate, and letters of administration are issued (usually to the next of kin) to administer the estate.

However, most of us do not have the above information, so a search of the National Probate Calendar (generally known as ‘Wills and Admons’) is necessary. These are annual cumulative indexes of all wills proved in England and Wales from 1858 to the present day.

Copies can be found in book, microfiche or microfilm form at major repositories, and also at some large libraries and Probate Registries. Entries appear in the volume covering the year in which the will was proved, not the year in which the person died, and this may be several years after the death occurred.

The entry usually provides the date and place of death as well as the names of the executors/ administrators and the amount of the estate.

These indexes, used in conjunction with the General Register Office (GRO) Index of Deaths can help you to ascertain if the entry you have found in the GRO Index is the one you are seeking.

Quite often the will is better value for money because it should provide more genealogical information. Don’t assume that your ancestor was too poor to have left a will.

There may have been some items of special sentimental value that he or she wanted to pass on to a favourite relative, and so although the amount left may be small in monetary terms, in genealogical terms it can be priceless.

The extracts for 1916 shown below have consecutive entries in the sums of £19 18s 0d and £79,183 2s 3d respectively:

WILLIAMS Mary Catherine
of 31 Howard-street Hulme MANCHESTER died 14 March 1916 at the Workhouse Infirmary Withington Manchester Administration Manchester  3 April to Annie Webb spinster. Effects £19 18s.

WILLIAMS Mary Elizabeth
at Holme Island Grange-over-Sands LANCASHIRE widow died 28 July 1915 Probate LANCASTER 13 January to George Edward Moser solicitor George Evans chartered secretary and managing director and John James Moffect accountant. Effects £79,183 2s 3d.

Dates to remember

Between 1858 and 1870 the wills and letters of administration have separate sequences, with admons appearing alphabetically after the wills. From 1871 both are listed in the same alphabetical sequence.

Although the year 1858 is vital to locating wills and probate records, two other dates are also helpful. Death Duty is a term used to encompass various taxes, such as on legacies, from 1796.

Initially these were payable on estates with a value of £20 or more, and taxes collected by the Estate Duty Office. This later merged with the Inland Revenue, and so the death duty registers and their indexes are in Classes IR 27 and 28 at the National Archives (TNA).  

As there is no single index to wills prior to 1858 which could have been proved in any of the 250 or so ecclesiastical courts, the Death Duty Registers are an effective shortcut to locating wills proved between 1796 and 1858. They cover the period up to 1903 and may be annotated, so it is worthwhile examining these in addition to the will itself wherever possible.

The TNA leaflet Death Duty Records from 1796 (DR 57) can be downloaded here.

Initially, much of the estate was exempt from tax, but, by 1815, this applied only to the portion paid to the spouse, so after this date more wills became liable to death duty - especially as the lower limit of £20 had not been increased, even though inflation had risen.

Before 1858 there was a strict hierarchy of courts in which wills could be proved. The smallest of the jurisdictions was the Peculiar, which generally consisted of one or more parishes located within an Archdeaconry, but exempt from the Archdeacon or Bishop's authority.

They fell within the jurisdiction of another religious authority, such as the Dean and Chapter of a Cathedral, a lay authority such as a university or the Lord of the Manor. Most had ceased to function by 1857, but Phillimore's Atlas and Index of Parish Registers gives the location and names of Peculiars within each English and Welsh county.

Archdeacon’s Courts could prove wills or grant letters of administration if the testator's property was held only within the area covered by the Archdeaconry.

Where property was held in more than one Archdeaconry, the Bishops (or Consistory) Court had jurisdiction, but where goods to the value of £5, or £10 in London, were held in more than one diocese the deceased was deemed to be in possession of a bona notabilia, and probate was granted in the higher court.

These were the Prerogative Court of Canterbury (PCC) and Prerogative Court of York (PCY).  The former held seniority and covered most of England and Wales south of Derbyshire, and was located at Doctor"s Common close to St Paul"s Churchyard in London.

It was the location of property which determined the court at which the will was proved, so this was not necessarily geographically near to where the person lived or died. Stocks (or gilts) were administered by the Bank of England, and so any stockholder would be considered as holding property in London.

Sometimes it was more convenient for wills to be proved in a higher court than necessary if, for instance, the executor lived some distance from where the deceased"s property was held. Wealthy people also tended to utilise the higher courts as a symbol of their status.

The PCC was also the preferred court for many non-conformists and Catholics who did not want to deal with the Established Church. It was obligatory for serving soldiers and sailors, people with property held in England and Wales who died abroad and people from abroad who died here to have their wills proved at the PCC.

During the Commonwealth (1653-1660) all wills were proved at this court.

Wills and probate - obligations

Until 1782 executors or administrators were obliged to supply a "true and perfect inventory of the goods and chattels" of the deceased person. This is, in effect, a room-by-room guide to his dwelling, itemising all the goods within the house as well as any outbuildings, workshops, live or dead stock, and crops.

While only a small portion of those for the PCC have survived prior to 1660, a higher proportion may be found in the Archdeacon"s or Bishop"s Court records.

For example, the inventory for Mary Hadley, widow of Aston [Birmingham], went to probate in 1693 and lists goods in the house as well as her deceased husband"s work tools. Her estate was valued at £1 10s 10d, much of which came from the sale of goods amounting to 6s 01/2d to one John Hadley.

Most wills made by women prior to the 20th century were probably those of widows. Spinsters were often too poor, and until the passing of the Married Women\"s Property Act in 1883, on marriage any property of the bride became that of her husband unless private arrangements, such as a marriage settlement, had been made.

Before 1840 the will register for each year was given the name of a prominent person whose will was contained in it. That of 1734 was named 'Ockham' after Lord King of Ockham who was Lord Chancellor, and responsible for the Act ordering English to be used in legal documents instead of Latin.

Wills are one of the few documents which give us a real insight into both the blood / marriage relationships between family members but, more importantly, they are probably the only source which tells us the emotional relationships between the testator and the persons to whom he or she left all their worldly goods.

By Doreen Hopwood

In memoranda?

Deathbed Wills

Some wills were spoken, or were written in the testator's own hand.

Death-bed or non-cupative wills

Until the law was amended in 1837, these spoken wills made up almost a third of all probates. As long as the dying man had been resident at the place of death for at least ten days, and spoke his last wishes in the presence of three witnesses, the written account of his words were deemed to be legal even though the will was not signed by the testator. Non-cupative wills continued to be legal only for military personnel on active service. If the document starts with the word 'memoranda' this signifies that the will was spoken, not written by the testator.

Holograph wills

These were wills written entirely in the testator's own handwriting. They did not require witnesses, and could be probated on the strength of a statement from friends or relatives that the will was in the testator's own hand.

Understanding a will before 1858

A Will before 1858

Here is the breakdown for the impenetrable will of Richard Smalbroke 'the elder', 1613. A transcript of the original text can be downloaded below.

 Most wills start with a standard preamble
-IN THE NAME OF GOD AMEN The sixe and Twentith daye of July in the yeare of our Lord God one Thousand six hundred and Thirteene and in the yeare of "the Raigne of our soveraigne Lord James"

The soul is then committed to God, and a Catholic may add a prayer for the intercession of the Virgin Mary
"ffirst I comend my soule to Alimightie God my Creator and to Jesus Christ his sonne by whose death and bitter passion And by none other meanes I trust only to be saved"

Instructions for the funeral and burial
"my desire and will is That Mr. Archer viccar of Yardley aforesaid shall make a Sermon at my buriall"

Charitable bequests to the poor of the Parish
"to the poore inhabitants of Yardley aforesaid ffiftie shillings of lawfull money of England"

Description of location of realty
"All those closes pastures and Crofts of land with thappurtenances called or knowne by the name and names of the Colmans or Colemans lyinge in Yardley aforesaid in the said Countie of Wigorn"

 Widows were usually given a life interest in property - or until she remarried
"my will is that Elizabeth my wyfe shall occupie the same meadowe during her life shee payinge the rents thereof due to the ffeoltees of the parishe lands of Yardley"

The disposal of personality (or moveable goods)
"I give and bequeath unto the said Richard Smalbroke my chest or coffer wch I have standing in this house and all the glasse seeling and waynscott standing in upon or about the house in Yardley wherein I did lately dwell or in or upon the windowes or other partes of the same house and my Table boardes and fframes wth the benches and formes standing in the hall of the same house and one greate Pott that lately stoode in a ffornace of the same house"

Beware of the terminology of relationships
‘Step’ and ‘in-law’ were often interchangeable, and a ‘cozen’ may refer to a kinsperson other than a cousin. Blood ties and Godchildren were held in higher regard than in later times, and often named as beneficiaries
"I give and bequeath to Richard Smalbroke my godsonne the sonne of the said Richard Smalbroke and to Anne Turton my God daughter the wife of William Turton and to Elizabeth Shawe the wyfe of Henry Shawe and to every one of them one Angell of of (sic) gould...

Details of payments ‘for their pains’ was often made at this point to executors or trustees, etc
"And I give to every of them Tenne shillings for their paynes"

The inventory
"Inprimus in the hall house one Table with a fframe, one Drawing Table and one forme and halfe a Dozen of Buffett Stooles. Item in the Parlour. one Drawing Table boarde with the frame one longe formne one livery Cupboard one other Cupboard wch was my ffathers one little Drawing Table two Chayres of Joyners worke and half a dozen of Buffett Stooles. Item in the Buttrye one Bynne for bread and one Table with the frame. Item in the Celler or Taverne one S[?.] Item in the Chamber over the hall one Beddsteed with a Testerne and one livery Cupborde. Itm in the Chamber over the kitchen one Bedsted with a Testerne and one liverye Cupborde and one presse and one Tune Bedd Itm in the Chamber over the Parlor one Bedsted wth a Testerne one Ptirle bedd one square Table one livery Cupborde one wrought Chaire and one ioyned Chaire. Itm in the Studdye and Closetts all Bords Tables and Shelves. Itm in the Kitchen and Bakehouse one broade Square Table wth the fframe and one Turnebroche of Iron comonly called a Jack and a greate pan that standeth in the Bakehouse and ffurnis. Itm in the Cocklofts a clock with the greate Bell and all the poyses and waights thereunto belonginge"

Understanding a will after 1858

A will after 1858

A little easier than the last will and testament of one William Knight, 1857. A copy of the will can be downloaded below

Standard preamble
"This is the last will and testament of me William Knight late of Birmingham in the county of Warwick"

Disposal of realty and personalty
"Give and bequeath unto my dear wife Sylvia Knight all my household goods and furniture plate linen china books pictures implements utensils and household effects which shall be in or about my dwellinghouse"

As time progressed the legal jargon became more complex, and is often confusing until read through several times
"And shall exonerate all purchasers and other persons paying any monies to said trustees or trustee by virtue of this my will from all liability in respect of the application thereof I declare that if any one or more of my said trustees or trustee or any trustees or trustee to be appointed under this provision shall die (whether in my lifetime or after my death) or shall go to reside beyond the seas or shall become unwilling or unable to act as trustees or trustee
of my will"

The date of the drawing up of the will may be several years before the death of the testator
"This sixteenth day of June in the year of our lord one thousand eight hundred and fifty five"

Any number of codicils can be added to a will
They reflect changes, over time, in relationship between the testator and his beneficiaries. It may be that one of the executors or beneficiaries pre-deceased him, or simply that the person fell out of favour;

 "to make this codicil to my last will and testament I give and bequeath to my mother Susannah Knight the weekly sum of six shillings to be paid to her during her life"

Do not think that if a child is not named in a will that he or she was the family's "black sheep".
More often than not it meant that provision for that person had already been made. This can be fairly obvious if a husband left a large sum of money when he died, but on his widow's subsequent death, the sum was largely depleted. In most cases she would have provided for her children, although it is also possible that she had spent it.

Wills – the legal jargon

Terms and abbreviations used in wills and will-making

[Probate] Detailing the distributions of the personal estate and the financial and the administrator’s or executor’s expenses.

The books which record the orders of the court - grants of probate to executors are recorded in the probate act books and grants of administration in the administration act books.

A grant giving the right to administer the estate of a person who died without leaving a valid will.

To leave by will - this relates only to PERSONAL property. See also Devise.

[Probate] A list of names of persons for whose estates a grant of probate or administration has been made.

A signed, witnessed addition to a will by the testator after the will has been drawn up and signed. Any number of codicils can be made.

First cousin - child of an aunt or uncle.

The condition of a woman being married and under her husband’s protection.

A judgement of court - may indicate that contested proceedings had occurred.

A testimony (which is usually written) given under oath.

To leave by will - this relates only to REAL estate. See also Bequeath.

Estate

The collective assets and liabilities of the deceased person.

The man/woman appointed by the testator to dispose of his/her estate in accordance with the wishes expressed in the will.

A will written entirely in the handwriting of the person making the will.

[Probate] A list of personal and household goods left by the deceased together with their appraised value. It does NOT include REAL estate or debts/liabilities.

A person who has died without making a will or for whom no valid will can be found.

A person under the age of 21 years.

A will made ORALLY by the testator.

Prerogative Court of Canterbury.

Prerogative Court of York.

Personal property - goods, chattels, credits, or moveable property.

The process of proving a will and also the evidence that a will has been accepted by the court, and that the executor has been granted permission to carry out the terms of the will.

Real estate, i.e. land and non-moveable property.

The remaining spouse - usually refers to the widow.

A man/woman who has made his/her last will and testament.

A written statement in which a person regulates the disposal of property and rights after his/her death. The WILL relates to realty (real estate), while the TESTAMENT refers to the personalty (personal estate) of the testator/ testatrix.