How did a will get proved? Probate business

When the deceased person left a will

In order for a deceased person's executor to be able to wind up the estate and carry out the provisions in the will it must first have been proved in a church court. The will had to be taken before a court official by the executor or his proxy and its validity confirmed. This process had to be initiated within four months of the date of death. This would usually require the executor and - within the province of York - one or more witnesses to make oaths that the will was properly published and would be properly executed. Frequently some note of the date or fact that the executor and witnesses had been sworn was endorsed on the will. Probate was then granted and legally confirmed with a written permission to administer the estate of the deceased, called a probate act (or fiat), usually recorded in a Probate Act book. A sealed copy of the will (usually on parchment) would be given to the executor or administrator (with the will annexed), and a second copy entered in the Probate Register.

If an executor or witness was resident outside the diocese, a letter of request would be dispatched to the bishop of the appropriate diocese, and the court officials in that diocese would then summon and swear the required persons to act. Executors must have been nominated by the testator in the will, and in this period only attainted traitors, convicted felons, minors, Catholics and those under greater excommunication might not undertake this duty.

When someone died without making a will ("intestate")

If there was no will or a testator did not nominate an executor, then only the church court could appoint an administrator by granting letters of administration. Such administrators were chosen according to established customs of consanguinity and next of kin, but often such persons would renounce their rights in favour of an existing (principal) creditor.

Administrator were normally required to further indemnify the bishop against liability for any subsequent maladministration on their part by entering into an administration bond, usually of a value twice that of the deceased's personal estate. Similarly, should an executor or administrator renounce his office or die before completing his duty, additional persons could be appointed by the court, and such persons were usually required to enter either into what is termed a will bond or into another administration bond. The interests of minors were also often secured in this way with curation and tuition bonds. Guardians could be nominated by the testator or appointed by the court, or (for older children) appointed by the minors themselves.

Additional probate documents and grants of administration

Grants of probate or of letters of administration were recorded in a Probate Act book, and a copy of the will was also usually entered in the Probate Register. Proofs of proper administration, in the form of submitted inventories and accounts, were usually stipulated in grants of probate and administration, as well as in their accompanying bonds, usually to a schedule of six months and a year after the date of the grant. This stipulation was made in Durham bonds even after an Act in 1782 made this no longer an automatic procedure. In fact, in the Durham probate records, while some 90% of deceased persons' executors or administrators produced an inventory in 1670s, by the 1740s this figure had already fallen to less than 1%. Accounts are even less common than inventories: after 1685 such documents were only required at the urging of a plaintiff in a disputed case.

Occasionally, a further grant of probate ('letters of administration with the will annexed') or administration was made, if perhaps administration was particularly protracted, or a number of the personnel involved died before administration was completed. In such a case, such latter grants would be of the 'goods left unadministered' (de bonis non administratis). Sometimes, many years might elapse between a person's death and a grant of probate. Additionally, a grant of probate might be limited to a clearly defined part of the deceased's property, a common example being an interest in a mortgaged property. Such delayed probates or administrations were usually initiated by the need to convey such a mortgaged property, the title of which was found to be still assigned to a person who had been dead many years, and therefore in legal limbo until a legal representative could be empowered by the church court to act in the matter. Property could easily become enmeshed in complex probate chains if not swiftly administered.

Disputed probate: 'common form' and 'solemn form'

The project's scope does also include the odd chance document from disputed testamentary causes, but in the main, records from testamentary causes are filed in a separate diocesan record series. Endorsements occasionally refer to equity disputes that reached the palatinate or royal chancery courts, and over which the church court held no jurisdiction. While defective and disputed wills had to be proved in the church court using a legal process known as 'solemn form', the vast bulk of Durham consistory court's probate business was a succession of routine grants of probate or letters of administration in the more simple 'common form', administered by a small court staff and a subsidiary group of commissioned officials operating around the diocese. Importantly, the probate of wills proved in common form could be challenged (in a solemn form process) up to 30 years after probate, whilst those wills proved in solemn form, which required proofs obtained in plenary rather than summary pleading, could only be challenged by appeal to a higher (provincial prerogative) court. Plenary pleading involved the more substantial test of cross-examined witnesses and deponents, and typically generated much more exactly prepared and recorded written documentation. More cautious executors sometimes chose to obtain solemn form probates at the first instance.

Records of disputed probate causes heard in the consistory court can be found among the general consistory court papers, within the separate collection of Durham Diocesan Records.

Fees and costs

All church court business generated revenue for the church in the form of fees for producing documents and copies, and also particularly for probate itself scaled against the value of the estate. Evidence for such fees can frequently be found in surviving bills of costs. Acts of Parliament were passed from the 14th century attempting to limit such church court fees. From 1530, by one such Act, a schedule of maximum probate fees was determined based solely on the value of the deceased person's estate, and which was adopted and left unchanged by most dioceses for more than a century, thereafter being adjusted for inflation. Estates worth less than £5 were exempt; those between £5 and £40 ('infra') were charged initially 3s 6d, and those above £40 in value ('supra'), 5s. Nevertheless, even a pauper who possessed enough property to make a will or to require an administration bond would have had to pay 6d to the registrar or his deputy for copying the will or drawing up the bond. In addition, documents dispatched from the court - for example a citation, monition or commission - each had its fee.

In these circumstances, poor persons were understandably reluctant to go to the expense and trouble of proving a will, and consequently one of the most unpopular duties of an apparitor was to ensure all such wills were proved. Chaucer's Summoner was famously abused by the Friar for oppressive zeal and venality, and tales exist of summoners serving citations before the body was in the ground. From the church's position, however, failure to prove a will was a sin, and imperilled the soul of the deceased. In practice, probate office correspondence exists demonstrating officials were sympathetic to paupers caught in the system, and as has been noted, even undisputed wills of estates valued over £5 were sometimes quietly proved by a bereaved family's local clergy and neighbours.