By Cathy A

Medieval wills are considered to be one of the most important primary resources available to researchers around the world. The practice dates back to ancient Greece and according to Plutarch, a Greek biographer and essayist, Solon, the Greek law maker “is much commended for his law concerning wills; for before his time no man was allowed to make any, but all the wealth of deceased persons belonged to their families; but he permitted them to bestow it on whom they pleased, esteeming friendship a stronger tie than kindred, and affection than necessity, and thus put every man’s estate in the disposal of the possessor; yet he allowed not all sorts of wills, but required the following conditions in all persons that made them.’

Bust of Solon from the National Museum, Naples

The development of Roman law allowed for the ‘modernisation’ of wills, which, in turn, became the foundation of ‘inheritance’ law. This was further influenced by the Roman Catholic Church via Cannon Law. Early Roman wills were spoken aloud, by the legator (the person making the will) to seven witnesses. The witnesses were entrusted to recall the legators wishes after he had died. As you can imagine, this did not always work to plan and as a result, wills were ordered to be recorded in writing.

The Catholic Church played a vital role in the development of wills. Christians were encouraged to make a bequest or gift to the church and in doing so they absolved their souls of sins and bettered their chances of entering heaven. Money and property could be bequeathed to the church only if it did not originally belong to the church. Many wills were deposited within local churches and it was generally accepted that the will should be made in the presence of a priest and two witnesses.

History of Wills in England

Land –

Prior to the conquest of 1066, men (with the exception of women and children who had limited rights) could dispose or bequeath their property in any way that they saw fit. This changed markedly when William the Conqueror declared that, as King, all the land in England belonged to him. As a result, land could no longer be disposed of via a will. It is believed that the change came about to prevent ‘death bed’ gifts of large tracts of land to the church. During the Middle Ages, the Catholic Church had acquired substantial estates and each church and religious order was recognised as a legal person, separate to say the abbot or the bishop. Therefore, the land could not or pass to another by inheritance, as the church and the religious orders didn’t actually die.

William the Conqueror

With the introduction of this law, the only way to ‘own’ land was to become a ‘feoffor’ whereby an individual was given land in exchange for a pledge of service. The ‘feoffor’ could only will his land to a competent living relative. This was subject to the rules of primogeniture (right of succession via the first born, legitimate son or the rightful next of kin). When a landholder died without any living relatives, his land would return to the Crown.

Copy of Thomas Kennardesle’s will dated 2 December 1391 – The National Archives, UK

In 1540 the Statue of Wills was passed (after a protracted disagreement between the parliament and King Henry VIII who wished to change the laws of inheritance in order to bolster his dwindling coffers).

The Statue of Wills made it possible for landholders to determine who would inherit their land upon their death by permitting devise (gift) by will. The statute was something of a political compromise between Henry VIII and English landowners, who were growing increasingly frustrated with the primogeniture ruling and the royal control of land.

The Act of 1660 allowed for land to be devisable (gifted) by a written will, with the exception of corporations (such as the church) married women, infants, idiots and lunatics.

The Statute of Frauds (1677) dealt with the formalities of execution of wills. Previously, simple notes, even in the handwriting of another person was considered to be sufficient as a will. This Statute required that all wills had to be in writing, signed by the testator or by a person for him in his presence and by his direction, and signed by three or four credible witnesses.

Copy of Jane Austen’s will dated 10 September 1817 – The National Archives, UK

Personal Property –

In accordance with common law, a man could only dispose of his whole personal property if he left no wife or children. If he left either wife or children, he could only dispose of one-half of his property and one-third if he left both wife and children.

These shares were called their pars rationabilis and they were expressly recognised in the Magna Carta, signed on 15th June 1215 at Runnymede. Over the next four centuries this law was gradually and widely superseded. At what period the right of disposition of an individual’s personalty (whole or complete personal property) changed is not known, but Acts passed in 1693 and 1726 included the ‘right of bequest’ be assimilated into the general rule of law.

King John Signs the Great Charter – James William Edmund Doyle (1864)

A will of personalty could be made by a male at fourteen and by a female at twelve, which is rather different to today’s requirement of 18 years of age.

The rules surrounding a will bequeathing personal property was not as stringent as a will of land/s. Up until 1838 an oral or verbal will was often accepted and witnesses to a written will did not need to be considered ‘credible’ nor did the will have to include the signature of the testator.

The National Archives Office (England) holds registered copies of wills made between 1384 and 12th January 1858. You can search and view their database at http://www.nationalarchives.gov.uk/help-with-your-research/research-guides/wills-1384-1858/

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