Wills (2023): Legal history of wills (Part Two)

Legislation.

Such were the principal stages in the history of the law as it affected wills made before 1838 or proved before 1858. The principal Acts in force in the early twentieth century were the Wills Act 1837, the amending Act of 1852, the Court of Probate Act 1857, the Judicature Acts 1873 and 1875, and the Land Transfer Act 1897. All but the Acts of 1837 and 1852 deal mainly with what happens to the will after death, whether under the voluntary or contentious jurisdiction of the Probate Division.

The earliest on the statute roll is an Act of Henry the 3rd  (1236), enabling a widow to bequeath the crops of her lands. Before the Wills Act 1837 uniformity in the law had been urgently recommended by the Real Property Commissioners in 1833. It appears from their report that at the time of its appearance there were ten different ways in which a will might be made under different circumstances.

The Wills Act 1837 affected both the making and the interpretation of wills. Excluding the latter for the present, its main provisions were these:

All property, real and personal, and of whatever tenure, may be disposed of by will.

If customary freeholds or copyholds are devised, the will must be entered on the manorial rolls.

No will made by any person under the age of twenty-one is valid.

Every will is to be in writing, signed at the foot or end thereof by the testator or by some person in his presence and by his direction, and such signature is to be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to subscribe the will in the presence of the testator. It is usual for the testator and the witnesses to sign every sheet.

Gifts to a witness or the husband or wife of a witness are void.

A will is revoked by a later will, or by destruction with the intention of revoking, but not by presumption arising from an alteration in circumstances.

Alterations in a will must be executed and attested as a will.

A will speaks from the death of the testator, unless a contrary intention appears.

An unattested document may be, if properly identified, incorporated in a will.

Rules of interpretation or construction depend chiefly on decisions of the courts, to a smaller extent on statutory enactment. The law was gradually brought into its present condition through precedents extending back for centuries, especially decisions of the court of chancery, the court par excellence of construction, as distinguished from the court of probate. The court of probate did not deal unless incidentally with the meaning of the will; its jurisdiction was confined to seeing that it was duly executed. The present state of the law of interpretation is highly technical. Some phrases have obtained a conventional meaning which the testators who used them probably did not dream of. Many of the judicial doctrines which had gradually become established were altered by the Wills Act 1837.