NEI Project: Wills and Testaments

Wills and Testaments

Two different instruments - two kinds of property

After the Statute of Wills came into force in 1540, heritable property was divided into immovable and moveable, corporeal and incorporeal property, the former being divestments devised by will to devisees, the latter being legacies or bequests bequeathed by testament to legatees. The former, sometimes described as real estate, included freehold and copyhold land and tenements. Incorporeal hereditaments and moveable goods included the deceased's goods and chattels. Such chattels could be both real and personal property - the former including leases and rents, the latter any money, household goods, plate, cattle, crops, credits (and debts) etc. Strictly speaking, a will did not require an executor, while a testament did.

The devisement of land was clearly defined and limited within customary rules of primogeniture and inheritance, and those prevailing in the relevant manorial court. In the medieval period only purchased land and land held for a specified number of years might be devised freely by will, thus excluding heritable land. Land tenure at this time was still held of the king (albeit increasingly indirectly). However, the Statute of Wills in 1540 allowed a person freely to devise all his lands held in socage and two thirds of his lands held in knight service (with the remainder passing automatically to the heir at law). In 1660 it became possible to devise all one's heritable land freely by will (except land held in serjeanty). Disputed corporeal hereditaments fell under the jurisdiction of the civil Chancery courts, and not the church courts. Researchers should also note that where a testator includes divestments of land in his will, such lands may by no means be a complete summary of his real estate at the time of his death - prior settlements, trusts and entails may have been the preferred or pre-ordained instrument in many cases.

A person's temporal goods, his goods and chattels, fell under the care of the bishop and hence his diocesan court. Personal property was also subject to long established laws of distribution, safeguarding one third shares to any surviving widow and any children. While these laws of distribution largely fell out of use later with regard to testaments, they remained longer in force in the administration of intestates' estates. Certain distributive customs within the province of York also differed from those that prevailed in the rest of England, for which details researchers are for now advised to consult Burn's Ecclesiastical Law.

Why the church courts and not the civil courts, as it is now?

The church is known to have been granting probate from the early 13th century, and by the 1340s this fact was acknowledged as established custom in English law. The church's jurisdiction extended to testamentary business and a testator's personal property for two linked reasons. Firstly the deceased's disposition of his personal property would include religious bequests, mortuaries and instructions for his burial etc. which directly affected the health of his soul and his justification to God. There was therefore a moral duty to execute properly these explicit last wishes. Secondly, the temporal goods that made up a testator's chattels were only such that, as a Christian, he believed God had seen fit to bless him with, and over which he had some latitude to express his wishes via his testament.

That his land could not be so bequeathed was due to the historical legacy of feudalism and land tenure in England, by which all land and tenements were held of the king. With no freedom to divest his lands by testament, the inheritance of a deceased person's land was therefore not a moral matter for the ecclesiastical courts to monitor. Confusingly, the sovereign in England after the Reformation also held supreme spiritual jurisdiction as well as civil, but this jurisdiction rarely impinged upon the ecclesiastical courts.

So, while the church court did not have jurisdiction over the proving of wills, in practice testators usually made their 'last will and testament' in the form of a single document, and thus if the court proved strictly only the testament, it in fact validated the deceased's wishes concerning his entire estate, and preserved both the will and testament together in its Registry. Should these wishes be disputed at a later date, however, the church or chancery courts' respective jurisdictions would be strictly applied. Nevertheless, once the will (and testament) had been proved the devisees were immediately empowered to access or occupy the real property that had been devised to them. Such wills devising corporeal hereditaments function then as deeds of gift and could be used as such to secure a person's title of a property. Under these circumstances, the pragmatic utility of the diocesan registry operating as a place of probate and record for such important documents or deeds is obvious. In fact, testators would most often draw up mixed wills - i.e. a last will and testament - and consequently the term will has long been used to describe both wills and testaments, and it is this sense that is adopted for the remainder of this article.