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WILLS AND TESTAMENTS AFTER 1692

Changes in the Law of Intestacy 

At the end of the seventeenth century, changes in the law of inheritance were introduced concerning what was to happen legally if a deceased person had not made a will or testament. 

The pre-1692 rules were adjusted which meant that the distribution of the deceased's personal estate was now governed by new Rules of Distribution; these were the precursor to what we now call the Rules of Intestacy when someone dies without making a will.

The Rules of Distribution provided how the personal estate was distributed amongst a deceased’s specific relatives and their next of kin. 

 

Probate Law

The new Rules of Distribution defined the persons who were next of kin. 

Who the next of kin were depended upon whether the deceased was married or not and if they had children or grandchildren. 

Rules of Distribution

The first rule was that if a wife died before her husband, then the husband was entitled to receive all her assets. In the eyes of the law a married couple was regarded as one person, and the one person was the husband! He owned his wife's assets on marriage. Therefore, it followed that on her death everything was already his.

From the eighteenth century onwards, marriage settlements were created to protect some of the wife’s assets prior to the marriage. 

A widow's rights

If the husband died first without making a will, and he was survived by his widow, then she would inherit a portion which depended on who else survived her husband.

If there were children of the deceased, then the widow took one third of the assets and the remaining two thirds went to his children, equally.

If a child had predeceased the deceased parent, then his grandchildren took the share that would have gone to their late parent had they not predeceased their grandparent.

If there were no children or grandchildren, then the estate was divided into two half-shares, one passing to the widow and the other half passing to the next of kin. 

Next of kin

Next of kin were established by determining which relative, other than the widow, children or grandchildren, was closest to the deceased.

  1. 1

    If the deceased’s father was alive, he was the next of kin and took the half-share.

  2. 2

    If the father did not survive his son, the next of kin who took the half-share would be the deceased’s mother, brothers and sisters, as a class, equally between themselves .

  3. 3

    If none of them was alive when the deceased died but there were nephews or nieces of the deceased alive, then they took the half-share as next of kin, equally.

  4. 4

    If there were no such next of kin then the widow took the entire personal estate not just a share of it.  

  5. 5

    If there was no surviving widow but there were surviving children of the deceased, they inherited equally.

  6. 6

    If there were no surviving widow, children or grandchildren, then the next of kin, as defined above, took the estate in the order of priority stated. So a father would inherit, failing whom a mother or siblings equally, failing whom nephews and nieces.

Widow's Statutory Legacy

These rules continued from 1692 until 1892, when for the first time, a widow received a fixed statutory legacy of £500 and one half of the assets. The other half went to children or grandchildren, failing whom to next of kin (as defined above) or passed as bona vacantia.

Bona vacantia means vacant goods and is the name given to ownerless property, which by law passes to the Crown.

Bona Vacantia

Should there be no next of kin surviving the deceased, then the assets passed to the Crown as bona vacantia.

In the Duchy of Lancaster, they went to the Duke of Lancaster (the Monarch) and in the Duchy of Cornwall, to the Duke of Cornwall (the Prince of Wales).

Rules of Intestacy

                                The rules of distribution altered again in 1925 to become the Rules of Intestacy which broadly apply today.

A Widow's Dower

A widow had what was called a right of dower; this was automatically one third of her husband's land (realty). She was entitled, by virtue of her status as his widow, for the duration of that widowhood. If she remarried, this right would cease since her assets would pass to her new husband, and she woud again be a married woman and no longer a widow.

This article was contributed by David Lambert from Family History Federation.

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