Wills and Testaments

(The elements of a will)

Testators often then explicitly revoke any prior wills.

Finally, the testator would sign and seal the document, either with their signature or, if illiterate or too weak, with a simple mark. A seal, although not essential, gave force to the document as a formal deed.

This final act must have been witnessed, in this case by two or more witnesses who were neither ‘infamous nor interested’, that is that they neither stood under some disqualification nor that they benefited from the provisions of the will, and who would in turn add their signatures or marks to the will.

Proving a will

Following the death of the deceased, their executor would find and bring the will to the consistory court for probate. There, the executor and - in the province of York - at least one witness to the will would be sworn to the validity and proper execution of the will. Frequently short memoranda would be added to the will by the probate clerk or the Surrogate reporting that certain persons had been duly sworn, and perhaps noting any other relevant information. Sometimes these oaths would be administered by a clerk in the deceased's local parish, empowered by commission to do so and to grant probate: the will, inventory, commission and any other documents would then be sent in to Durham for formal probate, entry in the Probate Act book and deposit in the Registry. Should a will be deficient in any essential attributes, perhaps if it was neither signed nor marked by the testator or if the names of witnesses were not subscribed, then its validity was in theory contentious. Even then probate might still be obtained by successfully proving the will in Solemn Form of Law in open court, as distinguished from the more usual and uncontentious probate in Common Form.

Proved wills' importance as proofs of title has already been discussed, and it was quite common for executors or residuary legatees to request the delivery of the original will out from the Registry archive, perhaps in order to pursue a case in Chancery, or merely to facilitate a sale. In such cases a Registry copy of the original will was usually made, with a certificate of its accuracy endorsed by a court official. Even then the original will was usually only delivered to the person upon their having entered into a bond to redeliver the original will should it be needed by the court - uncancelled and unaltered in any way. Executors and other interested parties such as creditors might also ensure that no-one else might withdraw the original will without their permission, or indeed prevent the undue granting of probate to others, and did so by entering a 'caveat' or caution that was filed with the will. Copies of wills in the Registry archive were also frequently made or extracted for the use of interested parties, and were often issued with a supplementary document recording the date of the grant of probate, and the name of the authorised executor or administrator.

The exemplar will in this article is that of Isabel Mitford of Longbenton, spinster, dated 2 March 1700 [Reference: DPRI/1/1706/M1/1].

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