Wills and Probate Records
- Why look for wills?
- Probate arrangements before 1858
- Probate arrangements from 1858
- Why does Devon have no original wills?
- Locating Devon wills and administrations
"all persons male or female, old or young, lay or spiritual, at any time before their death, whilst they are able to speak so distinctly, or write so plainly that another may understand them, and perceive that they understand themselves, may make wills of their lands, goods and chattels"
Jacob’s Law Dictionary
Anyone with any possessions could make a will to say who was to inherit their property after their death. A will was a document which devised land [real estate], and a testament bequeathed money or goods [personal estate]. In practice, the terms will and testament came to be used to mean the same thing. Unmarried girls as young as 12 were thought capable of making a will, and boys at any age between 14 and 17, depending on their discretion. Married women could bequeath goods and chattels with the consent of their husband, who had to be the executor of the will. The goods and chattels were those the wife had brought to the marriage, plus her "paraphernalia" which was a legal term meaning her necessary wearing apparel with which her husband had provided her. Widows were able to make their own wills.
A will could be written down and signed by the testator or testatrix [the man or woman making the will] and two or more witnesses, or it could be verbal. Verbal wills are known as "nuncupative". After the will was made, the testator could add to it at a later date with a codicil, if he changed his mind about a bequest, or if family circumstances changed.
Why look for wills?
Wills are useful for family history research because of the information they give about family members. They can name the spouses of sons and daughters, or give the names of grandchildren, and they are very good at clarifying relationships in the family, particularly when several people in the family have been given the same Christian name.
Sometimes a testator or testatrix [the man or woman making the will] left the tools of a particular trade to one of his/her sons, or items of furniture or clothing to his/her children or grandchildren. It was common, however, for family property not to be mentioned at all, because the house or farm had already been settled on the eldest son by the parents’ marriage settlement, which was a legal document drawn up just before the parents married. An indication of this is the bequest of nothing but a small sum of money, such as a shilling, to that son. A married daughter may have also received a small token sum if her portion of the estate had already been given to her at the time of her marriage. If a child was really "cut off with a shilling", the person making the will would usually give the reason.
Probate arrangements before 1858
The testator or testatrix [the man or woman making the will] was expected to name an executor or executrix in the will. This person was responsible for proving the will after the testator’s death. The will had to be proved by the executor or executrix for it to be valid, and this process was known as probate. Before 1858, this was largely under the control of the church, and was usually done at an ecclesiastical (Church of England) court, although a few non-ecclesiastical courts – for example, some manorial courts - also had the right to prove wills. The Diocese was divided into sections called archdeaconries. Cornwall was covered by the Archdeaconry of Cornwall. In Devon, there were two archdeaconries – these were the Archdeaconries of Totnes and Barnstaple. Wills were commonly proved in the Consistory Court of the archdeaconry in which the deceased person had property. There are exceptions to this. In Devon the Archdeacons’ Courts did not act while the Bishop of Exeter was visiting the area, so wills would be taken to the Bishop’s Court to be proved, during his visitation.
There are also parishes known as "peculiars" which belonged to the Bishop, or the Dean and Chapter of the Cathedral, or the Vicars Choral. Wills made by Devon people from these parishes would be proved in the appropriate court – i.e. the Bishop’s Court, the Court of the Dean and Chapter of Exeter Cathedral, or the Court of the Vicar’s Choral, in Exeter. The parish of Uffculme was unusual, in that it was a “peculiar” of the Bishop of Salisbury, so the wills of persons living in Uffculme were not proved in Devon at all, and the wills concerned are now held at the Wiltshire and Swindon History Centre in Chippenham, Wiltshire.
If the deceased person held property in more than one archdeaconry in Devon, then the will was proved in the Bishop’s Court. If he or she held property in more than one diocese, the will was proved in the Archbishop’s [Prerogative] Court, either at Canterbury or at York, and if the property lay in both archbishoprics, then the Prerogative Court of Canterbury took precedence. Wills proved at the Prerogative Court of Canterbury are commonly referred to as P.C.C. wills.
The executor would take the will to the court, where it was copied on parchment and a note that probate had been granted was attached to the copy. The original remained in the court and the executor took the copy. If a deceased person died intestate (without making a will) the next-of-kin could apply to the court for letters of administration. This is often referred to in abbreviated form, as an "admon". Until 1782, the executor of a written or verbal will was also obliged to submit an inventory of the testator’s or testatrix’s goods to the court.
As mentioned, there were other, non-ecclesiastical courts in Devon which could prove wills. The Cary family, and later the Mallocks, who were lords of the manor of Cockington, had the right to prove the wills of deceased tenants, grant administrations and take inventories at the manor court. For this privilege they paid 13/4d annually to the Archdeacon of Totnes.
The city of Exeter also recorded wills and inventories. In medieval times the Mayor’s Court in Exeter had the power to prove wills, which were enrolled on the rolls of court proceedings. Later, in 1560, Exeter obtained a charter to have a court to manage the estates of the orphans of the city. The court paid the orphans an annual allowance for their maintenance and lent out their money at interest, or the Chamber borrowed it to finance projects of its own. The money was refunded to the orphans when they reached the age of 21.
Probate arrangements from 1858
Devon wills were stored at the courts where they were proved until January 1858, when a new system of probate registration was introduced. The power to prove wills was taken away from the church courts and a civil probate system was set up. A Principal Probate Registry based in London, together with District Probate Registries, were set up. From this time on, Devon wills were proved in the Exeter Probate Registry.
A registered copy of each will and letter of administration was retained in Exeter, and a copy was sent to the Principal Probate Registry in London. Thus copies of all wills and administrations for England and Wales from 1858 until the present which were originally held in Exeter were also held in London at the Principal Probate Registry. The Principal Probate Registry is located at First Avenue House, High Holborn in London, and copies of wills can be obtained there in person, or by post through the Postal Searches and Copies Department at Leeds District Probate Registry.
At the end of each year since 1858, the Principal Probate Registry has compiled an index, arranged alphabetically, for all the proved wills and letters of administration received by them in that year. This is called the National Probate Calendar. Copies of this index/calendar were - and still are - also distributed to the District Probate Registries around England and Wales, where they are available for inspection by the public.
For more information on searching the National Probate Calendar and ordering post-1857 wills, read about locating Devon wills and administrations.
Why does Devon have no original wills?
Wills which had been proved in the archdeaconry courts in Totnes and Barnstaple before 1858 were eventually moved from there to the Probate Office in Exeter, as were the wills from the different Exeter courts, which had been stored in various places in the Cathedral. In 1908 Edward Fry wrote
" it was a red-letter day……….when these documents were transferred to their present resting place in Exeter".
Unfortunately, in 1942 the Probate Registry was destroyed in the bombing during the Exeter Blitz of the Second World War, and all the wills were burnt. This means that all the original wills kept in the various church courts and in the Probate Registry in Exeter, no longer exist - a great loss for those researching Devon families. However, copies of some wills do survive - read about how to locate existing copies of Devon wills.