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f the reign of king william and queen mary which prevents the citizens of the city of york from disposing of their personal estates by their wills as others inhabiting within the province of york by that act may do citation 2 3 ann c 5 territorial extent england and wales dates royal assent 24 february 1704 commencement 26 march 1704 c repealed 15 july 1867 other legislation amends wills act 1692 repealed by statute law revision act 1867 status repealed text of statute as originally enacted the history of wills of personalty was considerably different but to some extent followed parallel lines in both cases partial preceded complete power of disposition the general opinion of the best authorities is that by the common law of england a man could only dispose of his whole personal property if he left no wife or children if he left either wife or children he could only dispose of one half and one third if he left both wife and children the shares of wife and children were called their pars rationabilis this pars rationabilis is expressly recognized in magna carta and was sued for by the writ de rationabili parte at what period the right of disposition of the whole personalty superseded the old law is uncertain that it did so is certain and the places where the old rule still existed the province of york wales and the city of london were regarded as exceptions the right of bequest in these places was not assimilated to the general law until for york the passing of the wills act 1692 4 will mar c 2 for the province of york other than the city of york and the wills act 1703 2 3 ann c 5 for the city of york for wales by the wills act 1695 7 8 will 3 c 38 with the final assimilation not taking place until 1 june 1725 when the city of london elections act 1724 11 geo 1 c 18 abolished pars rationabilis for unmarried freemen of the city of london a will of personalty could be made by a male at fourteen by a female at twelve the formalities in the case of wills of personalty were not as numerous as in the case of wills of land up to 1838 a nuncupative or oral will was sufficient subject where the gift was of 30 or more to the restrictions contained in the statute of frauds the witnesses to a written will need not be credible and it was specially enacted by administration of justice act 1705 4 5 ann c 3 that any one who could give evidence in a court of law was a good witness to a will of personalty a will entirely in the testator s handwriting called a holographic will was valid without signature at one time the executor was entitled to the residue in default of a residuary legatee but the executors act 1830 11 geo 4 1 will 4 c 40 made him in such an event trustee for the next of kin 1 jurisdiction over wills of personalty was until 1858 in the ecclesiastical courts probate being granted by the diocesan court if the goods of the deceased lay in the same diocese in the provincial court of canterbury the prerogative court or york the chancery court if the deceased had bona notabilia that is goods to the value of 5 in two dioceses the ecclesiastical jurisdiction was of a very ancient origin it was fully established under henry ii as it is mentioned by glanvill in the city of london wills were enrolled in the court of hustings from 1258 to 1688 after having been proved before the ordinary contested cases before 1858 were tried in the provincial court with an appeal originally to the court of delegates later to the judicial committee of the privy council there were also a few special local jurisdictions courts baron the university courts and others probably for the most part survivals of the pre conquest period when wills seem to have been published in the county court the ecclesiastical courts had no jurisdiction over wills of land and the common law courts were careful to keep the ecclesiastical courts within their limits by means of prohibition no probate of a will of land was necessary and title to real estate by will might be made by production of the will as a document of title the liability of the executor and legatee for the debts of the testator has been gradually established by legislation in general it is limited to the amount of the succession personal liability of the executor beyond this can by the statute of frauds only be established by contract in writing 1 legislation edit 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 7 will 4 1 vict c 26 the wills act amendment act 1852 15 16 vict c 24 the court of probate act 1857 20 21 vict c 77 the supreme court of judicature act 1873 36 37 vict c 66 the supreme court of judicature act 1875 38 39 vict c 77 and the land transfer act 1897 60 61 vict c 65 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 1 widow s bequest of corn on her land act 1235 act of parliament parliament of england long title widows may bequeath the crop of their land citation 20 hen 3 c 2 territorial extent england and wales ireland dates royal assent 1235 commencement 1235 repealed 30 july 1948 other legislation repealed by statute law revision act 1948 relates to statute of merton status repealed text of statute as originally enacted the earliest on the statute roll is an act of henry iii the widow s bequest of corn on her land act 1235 20 hen 3 c 2 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 1 the wills act 1837 affected both the making and the interpretation of wills excluding the latter for the present its main provisions were these 1 all property real and personal and of whatever tenure may be disposed of by will if customary freeholds or copyholds be 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 appear 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 1 rules of interpretation founded on principles of equity independent of statute are very numerous some of the more important stated in as general a form as possible are these 1 the intention of the testator is to be observed this rule is called by sir edward coke the pole star to guide the judges there is a presumption against intestacy against double portions against constructing merely precatory words to import a trust etc one part of the will is to be expounded by another interlineations and alterations are presumed to have been made after not as in deeds before execution words are supposed to be used in their strict and primary sense many words and phrases however such as money residue and issue and other words of relationship have become invested with a technical meaning but there has been a recent tendency to include illegitimate children in a gift to children evidence is admissible in certain cases to explain latent ambiguity and parol evidence of the terms of a lost will may be given as in the famous case of sugden v lord st leonards 1876 1 prob div 154 relating to the lost will of edward sugden 1st baron st leonards a will may be void in whole or in part for many reasons which may be divided into two great classes those arising from external circumstances and those arising from the will itself the main examples of the former class are revocation by burning tearing etc by a later will or by marriage of the testator except as below incapacity of the testator from insanity infancy or legal disability such as being a convict undue influence and fraud any one of which is ground for the court to refuse or revoke probate of a will a will being ambulatory is always revocable unless in one or two exceptional instances undue influence is a ground upon which frequent attempts are made to set aside wills its nature is well explained in a judgment of lord penzance s pressure of whatever character whether acting on the fears or the hopes if so exerted as to overpower the volition without convincing the judgment is a species of restraint under which no valid will can be made there is nothing corresponding to the querela inofficiosi testamenti but unnatural provisions may be evidence of mental defect 1 the circumstances appearing on the face of the will which make it open to objection may either avoid it altogether or create a partial intestacy the will remaining good as a whole where the will is not duly executed e g if it is a forgery or if it is not signed by the testator or the proper number of witnesses the will is not admitted to probate at all where it contains devises or bequests bad in law as in general restraint of marriage or tending to create perpetuities or contrary to public policy or to some particular enactment only the illegal part is void a remarkable instance is a well known case in which a condition subsequent in a devise was held void as against public policy being a gift over of the estate devised in case the first devisee the eldest son of an earl did not before his death obtain the lapsed title of duke of bridgewater 1 at common law there could be no larceny of a will of lands but by the larceny act 1861 24 25 vict c 96 stealing injuring or concealing a will whether of real or personal estate was punishable with penal servitude for life forgery of a will at one time a capital crime rendered the offender liable to the same penalty fraudulent concealment of a will material to the title by a vendor or mortgagor of land or chattels is by the law of property amendment act 1859 22 23 vict c 35 a misdemeanour punishable by fine or imprisonment or both 1 history of wills in other jurisdictions edit united states edit in the 21st century eighteen is the typical age of testamentary capacity full liberty of disposition is not universal in particular many states normally grant spouses the right to at least half the estate regardless of what the will says or if no will can be found some require that children cannot be disinherited without good cause in many case children omitted in a will may still take their share louisiana followed french law by which the testator can under no circumstances alienate by will more than half his property if he leave issue or ascendants in 1911 the husband s consent was sometimes required for a married woman s will to be valid but this is no longer the case nuncupative and holographic wills are valid in some states but are forbidden in others the former are confined to personality and must generally be reduced to writing within a short time after the words are spoken in louisiana the mystic or sealed will still existed in 1911 the number of witnesses necessary for the validity of a will of any kind is usually two 1 vermont the last state to require three witnesses changed its law in 2006 2 to be valid witnesses must not be heirs under the will in 1911 wills of soldiers and sailors were privileged as in england 1 in modern u s law wills are not required to be registered prior to death in most states but are registered and put in the public record after the person making the will dies and the estate is probated however it is often still a good idea to have the signing and witnessing of a will notarized to reduce the risk of disputes over the will s validity after death wills can be used to nominate guardians for minor children but because children are not property the will cannot have the final word on the question guardianship is decided by courts though the usual outcome is that guardianship is awarded to the other surviving parent or if no parents survive to the guardian nominated in the last surviving parent s will scotland in 1911 edit see also scots property law up to 1868 wills of immovables were not allowed under scots law the usual means of obtaining disposition of heritage after death was a trust disposition and settlement by deed de praesenti under which the truster disposed the property to trustees according to the trusts of the settlement reserving a life interest thus something very similar to a testamentary disposition was secured by means resembling those employed in england before the wills act 1540 32 hen 8 c 1 of henry viii the main disadvantage of the trust disposition was that it was liable to be overthrown by the heir who could reduce ex capite lecti all voluntary deeds made to his prejudice within sixty days of the death of his ancestor the titles to land consolidation scotland act 1868 31 32 vict c 101 made it competent to any owner of lands to settle the succession to the same in the event of death by testamentary or mortis causa deeds or writings in 1871 reduction ex capite lecti was abolished by the reductions ex capite lecti abolished act 1871 34 35 vict c 81 a will of immovables must be executed with the formalities of a deed and registered to give title the disability of a woman as a witness was removed by the titles to land consolidation scotland act 1868 as to wills of movables there arc several important points in which they differ from corresponding wills in england the influence of roman law being more marked males may make a will...