Some people eat, sleep and chew gum, I do genealogy and write...

Wednesday, May 18, 2016

Critically examining a Will -- Genealogical Viewpoint -- An Introduction

As I have been expressing recently, I am tired of trying to simplify everything for beginners. I will still help those starting out, but I feel the need to start writing at my own experience level. Here I go looking at wills. We all know how valuable a will can be in advancing research. Unfortunately, wills are formal, legal documents and are couched in formulaic language. It is time to take a realistic look at the language and common structure of wills. For convenience in writing, I will focus on English language wills for my first go around.

Fortunately, I can find a number of will transcriptions online. I found an interesting website called the Will Transcriptions Website from the UK to give me a lot of examples of the language. I will refrain from copying any of the wills from that website however, and where appropriate, I will use other sources for my analysis.

There is a fairly good, but brief, summary of the inheritance laws in the United States in an article on the Library of Congress website entitled, "United States: Inheritance Laws in the 19th and 20th Centuries." Here is the summary, taken from that article.

Inheritance in the United States is generally a matter of state law. During the colonial period, the colonies adopted English inheritance law. Following independence, most states enacted statutes that codified common law with some modifications to English law and procedure. In the nineteenth century, with westward expansion, some territories entered the union as community-property states, adopting aspects of civil law. Most states adopted legislation giving married women control over and power to devise property they had inherited. Some differences are found between pre-1850 and post-1850 states concerning equality of widows’ and widowers’ intestacy rights. Over the course of the twentieth century, widows came to be treated more equally in inheritance compared to widowers, and spouses came to be treated more favorably in intestacy compared to children.
But it is my intention to focus this post on the language of wills. But of necessity, I will address the legal issues that created the need for the language.  If you need some background in wills, try looking at the American Bar Association article entitled, "Introduction to Wills." There are a huge number of will forms available online. One extensive list of sample forms is provided by the New York State Bar Association on a webpage entitled, "Estate Planning and Will Drafting Forms (Downloadable)." Because of the ease in finding such forms, there is a temptation for individuals to write their own wills. The first sentence in the Library of Congress summary above ought to be the answer to this temptation. Each state in the United States has its own peculiar statutory provisions concerning wills. You might want to think more than twice before you get involved in writing your own will.

Now to the task of looking at the language. Wills generally have some basic formal requirements. The will must contain some of the same provisions no matter when or where the will was drawn and executed. The main provisions are as follows:
  • A statement of the name of the testator
  • An expression of a desire to dispose of the testator's property upon death
  • A statement revoking any prior wills (whether or not there actually were any)
  • A statement naming an executor (aka personal administrator)
  • A reference or list of the testator's property and the disposition of the property
  • A expression concerning the disposition of all the remaining property of the testator
  • A date and a signature of the testator and usually the signatures of two witnesses
Some wills may contain much more than these basic provisions, but most jurisdictions require at least this much information to find a valid will. There are exceptions such as nuncupative and oral wills but these types of will generally be subject to scrutiny by the courts.

Here is a sample introductory statement from currently used will language.
I, [Name of testator] of [testator's location including state] being of sound mind and memory, do make, publish and declare this to be my Last Will and Testament, hereby revoking all prior Wills and Codicils. 
Let's go back a few years to  the year 1682. Here is a sample of some of the language you can expect to see.
In the name of God Amen ye 11 day of April in ye thirty fourth year of ye reign of o'r Soverereign L'd Charles ye second by ye grace of God of England Scotland ffrance & Ireland King Defender of ye ffaith £c & in ye year of o'r l'd God 1682 I [name of testator] ye elder of ye p'sh of Kirtlington in ye County of Oxon yeoman do mak being very sick & weake but in perfect memory do make & ordaine this my last will & testam't in manner & forme following... (See the Will of John Walton Sr. of Kirtlington.
The word "ye" is actually "the." The "y" is used to represent the thorn. Here is an image of the thorn letter.

When written, the word was transcribed using a letter that looks like a "y." So the commonly used designation such as "Ye Olde Shope" (or whatever) is nothing more than a misunderstanding and a show of ignorance.

If you study the language of the older provision and compare it to the newer one, you will see that the old provision is essentially the same as the newer one. The main difference is the use of religious language, the use of abbreviations and a few extra words.

It is not too unusual for the testator to omit the language revoking prior wills and codicils. This is a more modern concern reflecting the ease of making a will. In the distant past, making a will was usually done only done in extremis. There are some additional provisions in the old will that might help the genealogist however.

The will states that the testator is the "elder of the parish of Kirtlington in the county of Oxon." Kirtlington, UK is a small civil parish in the county of Oxfordshire. The testator's reference to being the "elder" in this parish probably refers to the fact that there was another person in the parish with the same name. There might also be more than one person with the same name. The rest of the will might give enough information to completely differentiate the testators from others with the same name.

What this provision illustrates is the absolute conservatism of will language.

I will continue this discussion in future posts.

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