Wills contain key information about family relationships and can give an insight into the personality of the writer. More and more old wills are now becoming available via online sources. Effort put into deciphering them can bring considerable rewards, as well as satisfaction.
At first sight, old documents can be intimidating. But although wills use technical legal language and eschew punctuation, their regular structure and the conventions of wording can be of great help both in orienting yourself, making informed guesses and recognising the letter forms used by a particular clerk. A will usually contains the following elements:
§ The name and occupation of a male Testator, or marital status of a female Testatrix, and their abode.
§ The date the will was made and a statement that this is the Testator’s last will and supercedes all others. This section often comes at the end.
§ A statement that, although weak or sick in body, the Testator is of sound mind (‘compos mentis’) and memory.
§ Especially in early wills, the Testator commits his soul to God and his body to the earth whence it came, sometimes specifying where he would like it buried. This committal is often introduced with the Latin tag ‘Inprimis’, or English ‘First’.
§ The Testator moves on to the temporal estate wherewith it hath pleased God to bless him. In earlier wills each legacy begins ‘Item’.
§ A distinction is often made between personal estate, or moveable goods and real estate – land, which the Testator may have rights to by copyhold as a manorial tenant, as a leaseholder, or as a freeholder who actually owns it.
§ Legacies are frequently made to Trustees – kinsmen or well-beloved friends – on trust to manage them in specified ways.
§ There are sometimes quite complex chains of fallback positions in case a legatee dies, especially where a legacy is only to be executed when the legatee attains the age of majority at 21 or marries.
§ The final legacy is of the ‘residue’ – all the remainder of the estate not hereinbefore specifically bequeathed.
§ It is often the ‘residuary legatee’ who is nominated Executor/Executrix of the will. In the 17th century, it is often the wife who is made Executrix. In addition, 17th century Testators generally nominate Overseers – sometimes called Trustees or Executors in Trust – to assist with the execution of the will and ensure that the Testator’s intentions are carried out; they are often given a ring or small legacy for their pains. In 19th century Testators (no doubt guided by the lawyers who were increasingly included as Executors) added a detailed statement excluding the Executors from any loss that occurred, through investments or banks failing, for example.
§ The Testator signs, seals and delivers the document, which is normally witnessed by at least two witnesses who are not beneficiaries.
§ Sometimes Testators had afterthoughts – almost as soon as William BAILY had sealed his will in 1811, years later in other cases. Changes were made by one or more Codicils, revoking or adding bequests. In 1845 Elizabeth OLIVE revoked the bequest of the interest on £1,000 stock together with her “trinkets” to her niece Frances in 1842: not presumably because she had died, since that eventuality was catered for in the original will…
§ Sometimes a will was dictated - a ‘nuncupative’ will. In this case or where the will has not been made in due form for some other reason – not properly witnessed, perhaps – an affidavit will be taken from witnesses who can identify the Testator’s writing, for example. This begins “Appeared personally… and made oath that…”
§ The record of probate is in standard form, often in Latin in earlier wills, e.g.
This will was proved at London the sixteenth day of October in the year of our Lord one thousand seven hundred and seventy seven before the Right Worshipful Sir George Hay Knight Doctor of Laws Master Keeper on Commission of the Prerogative Court of Canterbury lawfully constituted by the Oath of Robert Turk otherwise Taylor the sole Executor named in the said Will to whom administration was granted of all and singular the Goods Chattels and Credits of the deceased having been first Sworn duly to administer.
§ The right of the person granted administration is usually specified by their relationship to the deceased – often ‘Relict’ or widowed partner – and by their being an Executor named in the will or perhaps the Executor of a deceased Executor (in which case it will be a grant of ‘administration with will annexed’). Where only one Executor appears before the court, it reserves the power to grant like rights of administration to them if they so request. It will also say if one or more Executors has renounced their right to administer the estate.
§ In some cases a subsequent grant is made ‘de bonis non administratis’ – of goods not dealt with by a previous Executor.