Wills and Testaments

Publishing a will

There are three types of will - holographic, third party and nuncupative - which define how the will was drawn up and published. Holographic wills were drawn up by the testator himself in his own hand. Such wills often might not be properly published, and frequently required the oaths of the persons who could attest that the handwriting was that of the testator. Third party wills, the most common type, were drawn up by an attorney, a local clerk or any literate person. Usually the testator would outline his wishes to the scribe in front of witnesses, and the will would be drawn up. It would then be read aloud in front of witnesses to the testator, who would then state 'I publish this my last will and testament' whilst impressing his seal to the document - much akin to the publication of a formal deed. A certain number of independent witnesses needed to be present, and to testify themselves later to the sanity and clear intention of the testator: at probate such witnesses might each have to take oaths to this effect. Note that it was not necessary that witnesses should hear or know the explicit terms of the will. The interval between the drafting and publication of a signed, sealed and witnessed document was usually not long, but occasionally a testator died before his will might be properly published. Where this was the case, or where only his verbal intentions were known - frequently outlined on the deathbed - this was called a nuncupative will. While perfectly legitimate, such wills required a higher standard of proof in the court.

The elements of a will

A will usually comprises a number of elements whose presence is necessary to its validity: a will must be in writing; it must be signed by the testator; it must also be witnessed by three or four creditable witnesses where lands are devised, or two witnesses where only chattels are bequeathed. There are in addition standard elements that recur in most wills, and which ensure a smooth process of probate.

First, and most importantly, there is a clear and explicit statement of the testator's intention and sanity.

Image excerpt of 18th-century will. Text reads: '...being weak and sickly of body but of sound perfect and disposeing minde and memory praised be God. Yet considering the Mortality of my weak body and for the satisfying of my friends and Relations after my death doe make and declare this my Last will and Testament'

Testators will also record their identity and abode.

Image excerpt of 18th-century will. Text reads: 'I Isabell Midford of Longbenton in the County of Northumberland spinster'

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