The Origin of Wills Under the English Law

1) Introduction

The concept of passing on wealth to ones next generation upon the death of the current has deep historical roots. This is done through wills, testamentary predisposition, etc. This article delves into the evolution of wills under English law, from medieval times to the modern. This journey involves the origin of the tradition of will, procedural requirements, legal validity, and the current legal framework regarding it in England.

2) Definition and purpose

Wills are legal documents describing what a person wishes to do with his/her property/assets or how they want to divide the property after their death.

It is often assumed that wills are meant for people with immense wealth, but it is not. There are enough good reasons why anyone with assets, big or small should prepare a will [1]-

• You can be clear about who gets your assets. You can decide who gets what and how much.
• You can keep your assets out of the hands of people you don't want to have them (like an estranged relative).
• You can identify who should care for your children. Without a will, the courts will decide.
• Your heirs will have a faster and easier time getting access to your assets.
• You can plan to save your estate money on taxes. You can also give gifts and charitable donations, which can help offset the estate tax.

3) Origin

The English legal system has undergone a long process for the development of the understanding of wills.

A will is also known as a testament and helps decide what is to be done with the assets of a person after his/her death. Following is a brief view of the origin and development of wills in English law.

Ancient

The concept of wills developed in the Roman Empire. The Romans had a system that allowed people who owned property to decide its fate upon their death and this reached England during the Roman occupation of Britain.

Anglo- Saxon Era

It refers to settlers from the German regions of Angeln and Saxony, who made their way over to Britain after the fall of the Roman Empire around AD 410.[2] During this period, informal and oral forms of testaments were used. Individuals had limited control over their estate and land and property were governed by customary laws. The church had a heavy influence over the testaments during this period.

The Normans and Feudalism

The Norman conquest of Britain in 1066 brought many legal changes in Britain, including the introduction of formalities in the testamentary disposition. Feudalism was on the rise and even though informal, wills had now become a written instrument.

Formal/Official Wills

By the Middle Ages, wills had gained validity in Britain. The church had become powerful and hence it played a major role in the process of will-making. People started believing that their souls would achieve salvation through charity i.e. giving away their estates to the church after death. Due to this will-making was promoted and formalities regarding it were formed.

4) Statute of Wills, 1540.

The Tudor period led to the enactment of the statute of will in 1540, leading to legislative intervention in the testaments.

The key provisions and implications of this statute are as follows-

Formalization

The statute mandated the will to be a written document for it to be valid. This provision aimed at reducing disputes over the deceaseds wishes and providing more clarity and extended freedom for people.

Testator Eligibility

The statute expanded the range of people who could make wills, now including landowners, allowing more people to take care of their property how they wanted to after their death.

Prior to this, the people who could create a will were limited.

Executors

The statute acknowledged the appointment of people who could execute instructions as per the will. It aimed at the orderly execution of testaments of the deceased.

Codification of Holographic Wills

A holographicwillis a handwritten and testator-signed document and is an alternative to a will produced by a lawyer.[3]this statute allowed such wills. This provision offered a flexible approach to the people regarding the formalities and catered to situations where people dont have access to professional assistance to draft the document.

Religious element

The statute also allowed people to dispose of a part of their assets to religious institutions if they pleased to through a will.

The statute laid down rules as to who could write a will, which included, men aged 14 or more and women aged 12 or more could write wills. Then in 1837, the age was raised to 21 for both sexes. People who were not mentally capable or prisoners could not write wills. Moreover, married women could write wills till 1882, but not after that because of the introduction of Married womens Property Act of 1882, according to which women could not legally own anything.

This statute was a major development in the formation of the will system.

5) From seal to signature

This transition occurred over several centuries.

In the medieval period, seals on documents were considered as symbols of authenticity. It represented the consent of the other party and that the document was verified and approved by the testator.

The shift to signature broke the barriers for those people who did not have seals to officiate the document.

The English and Welsh law refined the rules governing wills, making the Wills Act of 1837, the successor of the statute of wills of 1540, mandating the requirement of a testators signature in the presence of witnesses. This enhanced the credibility of the wills and minimized the risk of fraud.

In the twentieth century, further refinements were made to the signature requirements, making it a standard practice.

And in modern times, the current debate revolves around the validation of electronic signatures as it raises issues regarding authenticity, security, and the need for extra protection in the cyber world.

6) Approval of wills

Before 1858, wills were proved by the church courts, and it was not always they would approve the wills. But from 12 January 1858, all wills were proved and administered by the local probate officers and were recorded in the principal probate registry of the family division. Today, wills in England and Wales, are required to adhere to strict legal requirements. For a will to be valid, it should be in writing, signed by the testator i.e. the person whose will it is, witnessed by two independent witnesses.

7) Conclusion

From the medieval period to the Tudor era to the modern times, the formalities of wills have evolved hugely. The article briefly threw light on the journey of the wills in English law.

Citation

1) Lisa Smith, What is a will, what does it cover and why do I need one?, Investopedia, 30 April 2023.

https://www.investopedia.com/articles/pf/08/what-is-a-will.asp#toc-why-you-should-have-a-will

2) The Anglo-Saxons, BBC.

BBC - History - Ancient History in depth: The Anglo-Saxons

3) Julia Kagan, Holographic will: Definition and state requirements, Investopedia, 18 June 2022.

Holographic Will: Definition and State Requirements (investopedia.com)