Development of the Law of Wills in England: Land

Liberty of alienation by will is found at an early period in England. To judge from the words of a law of Canute, intestacy appears to have been the exception at that time. How far the liberty extended is uncertain; it is the opinion of some authorities that complete disposition of land and goods was allowed, of others that limited rights of wife and children were recognized. However this may be, after the Conquest a distinction, the result of feudalism, to use a convenient if inaccurate term, arose between real and personal property. It will be convenient to treat the history of the two kinds of will separately.

Land

See also: History of English land law

It became the law after the Conquest, according to Sir Edward Coke, that an estate greater than for a term of years could be disposed of by will, unless in Kent, where the custom of gavelkind prevailed, and in some manors and boroughs (especially the City of London), where the pre-Conquest law was preserved by special indulgence. The reason why devise of land was not acknowledged by law was, no doubt, partly to discourage deathbed gifts in mortmain, a view supported by Glanvill, partly because the testator could not give the devisee that seisin which was the principal element in a feudal conveyance. By means of the doctrine to uses, however, the devise of land was secured by a circuitous method, generally by conveyance to feoffees to uses in the lifetime of he feoffor to such uses as he should appoint by his will. Up to comparatively recent times a will of lands still bore traces of its origin in the conveyance to uses inter vivos. On the passing of the Statute of Uses lands again became non-devisable, with a saving in the statute for the validity of wills made before 1 May 1536. The inconvenience of this state of things soon began to be felt, and was probably aggravated by the large amount of land thrown into the market after the dissolution of the monasteries. As a remedy an act was passed in 1540 (which came to be known as the Statute of Wills), and a further explanatory act in 1542-1543.

The effect of these acts was to make lands held in fee simple devisable by will in writing, to the extent of two-thirds where the tenure was by knight service, and the whole where it was in socage. Corporations were incapacitated to receive, and married women, infants, idiots and lunatics to devise. An act of 1660, by abolishing tenure by knight service, made all lands devisable, in the same vein the Statute of Frauds (1677) dealt with the formalities of execution. Up to this time simple notes, even in the handwriting of another person, constituted a sufficient will, if published by the testator as such. The Statute of Frauds required, inter alia, that all devises should be in writing, signed by the testator or by some person for him in his presence and by his direction, and should also be subscribed by three or four credible witnesses. The strict interpretation by the courts of the credibility of witnesses led to the passing of an act in 1751-1752, making interested witnesses sufficient for the due execution of the will, but declaring gifts to them void. The will of a man was revoked by marriage and the birth of a child, of a woman by marriage only. A will was also revoked by an alteration in circumstances, and even by a void conveyance inter vivos of land devised by the will made subsequently to the date of the will, which was presumed to be an attempt by the grantor to give legal effect to a change of intention. As in Roman law, a will spoke from the time of the making, so that it could not avail to pass after-acquired property without republication, which was equivalent to making a new will, Copyholds were not devisable before 1815, but were usually surrendered to the use of the will of the copyhold tenant; an act of 1815 made them devisable simply. Devises of lands have gradually been made liable to the claims of creditors by a series of statutes beginning with the year 1691.

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