Acts relating to Wills and inheritance in England and Wales

Statute of Uses (1535)

After the Norman conquest, the rule of primogeniture primarily dictated that all immoveable property be left to the deceased’s heir who was usually the man’s eldest son.[1] There were however different customs in some areas of England that meant the youngest son could inherit (“borough English”) or that all sons had equal shares (gavelkind in Kent).[2] Sometimes primogeniture was not what the testator wanted and a way around this was to transfer the land during their lifetime to trustees who would hold the land in accordance with the testator’s instructions.[3] Thus land could be held for the use of a favoured second son for example. The Statute of Uses 1535 prohibited land from being transferred this way.[4]

Statute of Wills (1540)

The Statute of Wills in many ways backtracked on the Statute of Uses in that allowed most real property to be devised by owners to relatives or friends of their own choosing.[5] However it did forbid anyone who was under the age of 21 from devising land in their will.[6] This was an important stipulation as the Statute allowed males over the age 14 and females from the age of 12 to make their own wills.[7] A girls’ will however would be void on marriage unless it was made with the consent of her husband.[8] Wills were still denied to lunatics, prisoners, traitors, heretics or slaves.[9] After the Tenures Abolition Act 1660, all land was freed from feudal tenure and therefore could be disposed of by the testator as they wished ( as long as they were over 21).[10]

Statute of Distributions (1670)

This Statute deals with the administration of intestate estates. If a person died without making a will or indeed died leaving an invalid will, an application could be made to a court for the appointment of one or more administrators, to administer the deceased’s estate and divide it amongst the beneficiaries. The administrator usually was the next of kin or perhaps a creditor.[11] The Statute of Distributions stipulated however how the estate was to be divided in the case of intestacy. One third of the Estate should go to the widow and the reside to be divided equally between the deceased’s children.[12] If he has no wife or children, the estate would pass to his parents.[13] If they were dead it would be divided equally amongst his siblings.[14] This allowed for any dependents to be supported in the case of intestacy.

Wills Act (1837)

Before the Wills Act of 1837, wills could be nuncupative or oral. This usually happened when oncoming death was unexpected and needed to be witnessed by at least two people who understood that the testator was making their will.[15] Under the 1678 Act for Prevention of Fraud and Perjuries stipulated that if the estate totalled more than £30 a nuncupative will needed three witnesses.[16] The will was then written down and signed as soon as possible but probate could not be granted until at least 14 days after the death of the testator to prevent fraud. Nuncupative wills were made invalid under the Wills Act (1837) unless they were made by soldiers or sailors on active service.[17] Under the Wills Act of 1837, the minimum age for leaving a will also became 21.[18]

Probate Act (1857)

The Probate Act (1857) provided that from 12 January 1858 jurisdiction over wills and administrations should be transferred from ecclesiastical courts and the Court of Chancery to a new civil Court of Probate and its registries in London and cross the country.[19] Despite this change in jurisdiction, there was “no change to the law of probate, and the new court followed the rules, orders and practice of the church courts.”[20]

Married Women’s Property Act (1882)

Before this Act a married woman could only make a will with her husband’s consent and even then he could revoke it any time before probate.[21] This was because, upon marriage, the husband and wife became one person under the law, as the property of the wife was surrendered to her husband and any personal property acquired by the wife during the marriage, unless specified that it was for her own separate use, was automatically her husband’s.[22] This Act allowed married women to make wills in their own right and recognised the wife’s separate legal identity.

[1] Herber, Mark D. (2004) Ancestral trails: the complete guide to British genealogy and family history.2nd ed. Stroud: Sutton. P 209.

[2] Ibid.

[3] Ibid. P. 210.

[4] Ibid.

[5] Ibid

[6] Grannum, Karen and Taylor, Nigel (2004) Wills and other probate records. Richmond, Kew: The National Archives. P. 69.

[7] Herber, Mark D. (2004) Ancestral trails: the complete guide to British genealogy and family history.2nd ed. Stroud: Sutton. P 210.

[8] Grannum, Karen and Taylor, Nigel (2004) Wills and other probate records. Richmond, Kew: The National Archives. P. 69.

[9] Ibid.

[10] Wikipedia. (NK). Tenures Abolition Act 1660. http://en.wikipedia.org/wiki/Tenures_Abolition_Act_1660 :accessed 14 April 2013.

[11] Herber, Mark D. (2004) Ancestral trails: the complete guide to British genealogy and family history.2nd ed. Stroud: Sutton. P 212.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Grannum, Karen and Taylor, Nigel (2004) Wills and other probate records. Richmond, Kew: The National Archives. P. 60.

[16] Ibid.

[17] Herber, Mark D. (2004) Ancestral trails: the complete guide to British genealogy and family history.2nd ed. Stroud: Sutton. P 212.

[18] Grannum, Karen and Taylor, Nigel (2004) Wills and other probate records. Richmond, Kew: The National Archives. P. 69.

[19] Herber, Mark D. (2004) Ancestral trails: the complete guide to British genealogy and family history.2nd ed. Stroud: Sutton. P 214.

[20] Grannum, Karen and Taylor, Nigel (2004) Wills and other probate records. Richmond, Kew: The National Archives. P. 20

[21] Ibid. P 68.

[22] Wikipedia. (NK). Married Women’s Property Act 1882. http://en.wikipedia.org/wiki/Married_Women%27s_Property_Act_1882 :accessed 14 April 2013.

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