Where there’s a will there’s a way

In last week’s Footnotes on Friday post, I wrote the first post of three on inheritance in Georgian England. Part 1 was about entails and titles. This week, I want to talk about wills. Part 3 will be about dowries, marriage settlements, and jointure (provisions in a will for the widow).

Only certain people could make a will

Then, as today, a will is a statement that says who is to have your property after you die. So the first requirement for our Georgian testators (will maker) is that they had some property (real, personal, or both).

They had to be ‘in their right mind’. If they made a will while insane or drunk, and someone could prove that, the will would be void. So would be the wills of convicted felons, traitors, outlaws, suicides, slaves, prisoners, and people who had been excommunicated’

Married women could only make a will with the consent of their husbands, and that consent could be withdrawn right up until the will was probated.

All other men and women could make wills, as could boys over the age of 14 and girls over the age of 12. In practice, poor people didn’t and those with substantial property to leave mostly did.

Wills were a way to look after the survivors

A will allowed a testator to make sure everyone was looked after, to pay debts (real or moral), and possibly (as we see in many stories) to settle final scores. Many testators specifically said that they’d made a will in order to prevent disputes in the family after their death. A few seem to have intended their grudges to live after them.

Wills were a final chance for the dead to impose conditions on the living, which is a marvelous device for us storytellers. In theory, testators could dispose of their own property however they wished. However, if the will seemed unfair, it might be challenged. As noted above, one ground for contesting a will is that the person made it while incompetent. A potential beneficiary might also contest the will on the grounds that it was made while the testator was under pressure, coercion, or undue influence, or that that the testator was defrauded (for example, into signing the will thinking it was something else).

Certain life events made a will invalid

A will was also invalid if it wasn’t properly witnessed, if a later will could be found, or if the person had married since the will was made. The birth of a child made a man’s will invalid, but not a woman’s.

‘Executing’ the will

The will usually named someone as executor. The executor was a person who would make sure that the testator’s intentions were carried out. Wills involving real property didn’t need to be probated  (‘proved’ in a probate court). Wills involving personal property, including leaseholds on land, did go to the church courts who were in charge of probate from the time of Henry II until 1858, the church courts granted probate or administration, and the will on which A Raging Madness pivots was probated in the Chancery Court in York.

Dying intestate

If a person died without a will, and if there were no deeds of settlement to the contrary, common law took over, and English common law said that an oldest son inherited the real property. If there was no will and no son, the property was divided among the daughters. If not offspring at all (and legal adoption didn’t exist), a set of rules came into play about who got what, with a portion for the widow and the rest divided among other relatives.

Personal property wasn’t covered by primogeniture, and was divided by the same rules if there was no will.

  • one third to the widow, remainder to the children
  • if there were no children, half to the widow, remainder to next of kin
  • if there was no widow, remainder to the children
  • if there were no children, administration could be granted to someone with an interest in the estate (eg, a creditor)
  • if there were no next of kin and no one wished to claim administration the estate would revert to the Crown.

 

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