Wills and Probate

It is probable that the most you can learn about a person is at the end of their life. Their will, if they made one, can contain a large amount of data, not only of the items they left but who they left them to and what the relationship was.

One of the main purposes of a will in the earlier days was to avoid giving their land automatically to the eldest son which was the default position. However wills only became legally recognised after the Statute of Wills was passed in 1540. At that time any man over the age of 14 or woman over the age of 12 could write a will.

The Wills Act of 1837 raised the age of writing wills to 21 for both sexes and excluded the insane, prisoners and those ex-communicated from the church from writing one. Married women however could not legally own anything until 1882 when the Married Women's Property Act came into force, so the wills of any women prior to that are probably those of Spinsters or Widows.

Prior to 1858, non-conformists and Roman Catholics could write wills but they would need to be proven in one of the Church of England courts. After 1858 they were dealt with by the secular courts and religion had no effect on any will.

Original wills will only be available if the family has kept them or you are lucky enough to find them with a solicitor or on eBay. The courts that proved wills did not keep the original wills, but keep Probate records which contain transcriptions of the wills. In a few cases, if the executor did not reclaim the will from the court, they may have deposited it in the diocesan record office or county archive.

Whilst in general the wealthier members of society were those who wrote will, it can be surprising how many did write them. The will would appoint an executor (or executrix if female) who, before 1858, would have to attend an ecclesiastical court to 'prove' the will and would then be granted probate to execute it in accordance with the will. Probate is in fact Latin for 'to prove'.

Not all wills would go for Probate, if there was not likely to be any challenge to the will then it could be settled privately to avoid the cost of Probate. In which case there will be no public record. Wills could also be oral and the court would require two witnesses to testify in order for Probate to be granted, after 1837 only military personal could dictate oral wills, normally on the battlefield.

Inventories of possessions of the deceased would be drawn up 'appraisers' which could be family or friends or possibly the solicitor of the deceased for larger estates. This inventory would then be attached to the will and may be transcribed into the court records. This happened between 1530 and 1782 but after that inventories would generally only be required if there was some dispute about the will.

If a person died without a will prior to 1858 and left substantial property the ecclesiastical court may have authorised an administrator to deal with the estate and issued letters of administration, these may be available and although not having the detail of wills can have useful information

Locating Probate can be quite tricky, especially before 11 January 1858 when you have to refer to the appropriate Diocese records. Whilst most wills prior to 1858 would be proven in the court for the area the person died in and had their property in, there were occasions where it was necessary to refer to higher courts, for example where there was property in more than one diocese. Though in some cases families, particularly the wealthy, elected to go to the higher court because of status.

From 1858

CASCAT now have Diocese of Carlisle probate records, 1548-1858; Carlisle Probate Registry records, 1858-1941 on line where you can find the name but not the content of the will at https://archiveweb.cumbria.gov.uk/CalmView/TreeBrowse.aspx?src=CalmView.Catalog&field=RefNo&key=PROB

Since 1858 all wills in England have been registered with the Probate Registry and they hold an index of wills and administrations. This lists the vast majority of probate cases since 1858 and it is available on line from several sources including Ancestry or you can usually find a copy in your local County Archive.

In some cases you may find a copy of the will in the County Records Office, however you may have to contact HM Courts and Tribunals Service and you can apply on line for a copy https://www.gov.uk/search-will-probate the current fee is £1.50 (For a limited period which is currently not defined.)

For Cumbria the Carlisle Records Office holds the information for Cumberland and Westmorland, but the records for the old Furness district of Lancashire, now in Cumbria, are held at the Preston Records Office.

Prior to 1858

From 1384 to 11th January 1858 all wills were submitted to the ecclesiastical courts for proving. There were a number of these and which one was used depends on the estate in the will and where the person had their estates and properties.

The highest court was the Prerogative Court of Canterbury (PCC), they would have dealt with the wills of the more wealthy, particularly those from Southern England, the Midlands and Wales, though they would also have to deal with any estate where land was located in different dioceses. A will would be proved by the PC if there was more than £5 in more than one diocese.

The next highest court where wills may have been proved was the Prerogative Court of York (PCY) which dealt with the north of England. The same details as for the PCC apply.

Diocesan and Archdeaconry courts were the places most small wills would be approved, if all the estate was in one parish it would most likely go to the Archdeaconry court for the area, if estate was in more than one Archdeaconry then it would go the Diocesan court. If in more than one Diocese then it would progress to one of the Prerogative courts mentioned above.

Reference must also be made to the Peculiars, this is an area within an Archdeaconry but outside the jurisdiction of the Archdeacon and also the Bishop. There are about 200 such areas in England and Wales and they came about usually because a senior church dignatory held office in one diocese and possessed land in another. They may be single townships, a whole parish or scattered groups of parishes. An example in Cumbria is Temple Sowerby. Peculiar records will be found in the relevant County Records Office.

During the Interregnum from 1653-60, the time of the civil war, all religious courts were banned so in this period all wills were proved at the Prerogative Court of Canterbury.

The PCC wills are from 1384 to 1858 and can be searched at National Archives

For the PCY wills you can refer to the Borthwick Institute for Archives at the University of York Borthwick Institute Note that there are very few wills prior to 1630 for this court.

If you have interests over the border in Scotland then you will need to refer to National Records of Scotland , you can view images free of charge if you visit the NRS search rooms or you can purchase the images from Scotlands People , you can search the index free, but you have to buy credits to download the actual image. Testaments as Wills are called in Scotland have generally been digitised for the period 1514-1925.

For Irish Wills check the National Archives of Ireland

For Northern Ireland after 1918 Wills, check NI Direct

In 2013 approximately 300,000 wills of soldiers who served from the Crimean War (1853) up to WW2 were discovered. These had never been included in the National Probate Calendar. These are now available on line at https://www.gov.uk/probate-search searching the index is free but copies will cost £10.

Don't forget to look at Death Duty records, these were taxes imposed from 1796-1903. These are useful if your ancestor did not leave a will and can contain details about the deceased, executors and beneficiaries. These records are at the National Archives and on some paid sites such as Find My Past.

The ordinary person usually left a will, it was not something that only the rich did. The clergy had a duty to ensure that all their parishioners died leaving all their earthly affairs in order and therefore encouraged all their parishioners to leave a will.

Terms used in wills. A Tutor was the legal guardian of any boy under 15 and girl under 13. A curator was the legal guardian of a minor, this being a boy aged 14-21 and a girl aged 12-21.