Back to the Future?

The old law on the Execution of Wills.

At a time when it is more difficult than usual, perhaps, to arrange the execution of a will, it is interesting to consider what once would have sufficed.

The Wills Act 1837 applied to all wills executed after 1st January 1838. The legal world was a little different at that time, probate jurisdiction was exercised by the Ecclesiastical Courts of which there were a plenitude, not only every diocese had probate jurisdiction but some Archdeacon's courts and certain Cathedral Deans and Sub-Deans. Jurisdiction was generally based on the parish where a person died but when a person died in one jurisdiction with goods or debts of more than ￡5 in value in another jurisdiction, and in cases of appeal, matters were heard by the Prerogative Courts of Canterbury and that of York with disputed cases often ending up in Doctors Commons London where advocacy was limited to those holding the degree of Doctor of Laws or Doctor of Civil Law, known as Advocates and the running of cases was in the hands of the “Proctors”. The Prerogative Court cases were reported by some of the Doctors and these reports now form part of the English Reports and can be accessed on a number of online databases, including Westlaw.

The distinction between Doctors and Proctors corresponded broadly to that between Counsel and Solicitors in the present day. Some practitioners would have operated as Proctors as well as, separately, Attorneys at Law and Solicitors in Chancery, whilst some Barristers such as the famous Dr Lushington, were also Advocates. One of the last of the Doctors was Dr Tristram who, in 1858, at the time when the new Court of Probate was taking over the probate work of the Ecclesiastical Courts, wrote the first edition of his Probate Practice. That court, then brand new, not only took over the work of the older courts but also many of the staff of the older courts, notably the registrars and many of its rules and customs, which have recognisably percolated down to us in the NCPR of today. The 1857 Act provided generously for proctors to sign on the roll of solicitors free of charge.

Before 1st January, 1838 where there was no real estate devised then Wills did not need to be written at all and in the case of estates worth less than ￡30 (about ￡4,000 now) there were no other formalities. Where the estate exceeded the ￡30 value then an oral will could still be made subject to some rather detailed conditions. These required that the deceased had made a declaration as to his will in the presence of 3 witnesses, at his own home or at some other address where he had been resident for at least 10 days (except if taken suddenly ill), the illness had to be his last illness and the witnesses evidence had to proofed within 6 months of the utterance of the words used. In these cases, citations also had to be issued to any widow and the next of kin before probate could be granted. Not surprisingly, written wills were very much preferred and in practical terms save for sailors and soldiers (to whom different rules had long applied) oral wills had fallen into disuse before 1837 in any event.

Written wills however did not require either attestation or a signature, as long as they did not devise realty. Such wills however had to be proved in Court (often by affidavit) with evidence that the written document really did amount to the testamentary intention of the deceased. In particular the Court had regard to all the evidence, including the place of deposit of the instrument, evidence of the reading of the putative will to or by the deceased, evidence that execution could have been intended by the deceased but prevented by “Act of God”, the terms of the document itself, subsequent recognition of the document as a will by the deceased and, generally, all the circumstances of the case. It was as we might now say, an holistic exercise.

Whatever may have passed or still passes north of the border holographic wills were in themselves (without the type of evidence set out above) somewhat frowned on by the Court Constable-v-Steibel 1 Hag. Ecc R. 60 . To be clear they could be admitted to probate but only where the surrounding evidence supported them, just like any other will, and far from obtaining any special status by virtue of being holographic they were viewed with some suspicion.

It was thus a matter of inquiry by the Court in every such case that the will represented the deceased actual testamentary intentions, and that he knew and approved of its contents. In Read v Phillips 2 Phill 122, a will was admitted on evidence that the deceased had left his will in a particular place where it was indeed found and that it had been read over to him by his housekeeper. It was entirely unsigned and un-witnessed. Where a will was as we would now say “in draft” and actually had an attestation clause, again in draft but not actually signed at all, and the testator suddenly died, then, once again it was admitted Scott-v-Rhodes 1 Phill. 12 Oddly enough a signed will which had an attestation clause that had not been completed was regarded with more suspicion and a proponent would have to explain why, if it was intended to be will, the document had not been witnessed Scott-v-Rhodes 1 Phill 19.

Even correspondence could be admitted to probate with the right facts Manley-v-Lakin 1 Hagg. Ecc. R. 130 thus also with written instructions for the drafting of a will in Burrows -v- Burrows 1 Hagg Ecc R. 321 although in that case there was evidence that an “Act of God” prevented the deceased from executing a will pursuant to those instructions.

It was different however when it came to land as any devise of realty however, to be valid had to be “…in Writeing and signed by the partie soe deviseing the same or by some other person in his presence and by his expresse directions and shall be attested and subscribed in the presence of the said Devisor by three or fower credible Witnesses or else they shall be utterly void and of none effect.” Section 5 Statute of Frauds 1677, obviously drafted before the advent of spell-checker.

It was thus possible for a will to be admitted to probate even though if it contained a devise of land it might not have been effective as to that devise. The real property would in such cases devolve to the heir, a matter for the common law courts and neither the Ecclesiastical Courts nor the successor Court of Probate. The Act of 1837 in effect adapted the form that had been historically used for devises of land and applied the adapted version to all testamentary dispositions.

By 1837 the country had moved, from a world of handmade artisan production to a world of mass produced machine made goods. Perhaps the formula of Section 9 represented a mental shift akin to that which had attended production in the industrial world. In a similar way, perhaps, the emergence of the computer in the last 50 years explains the somewhat algorithmic approach to justice one might just detect behind the “Mitchell” approach to the CPR. Following 1837, it was that much less a matter of a judge trying to answer the question “Does this represent the actual testamentary intention of the deceased?”, it was thence much more a matter of form over substance.