The unexpected death of some old lady
Or gentleman of seventy years complete,
Who’ve made ‘us youth’ wait too, too long already.
Up to a little more than a quarter of a century ago, the business connected with the proof and custody of wills and the granting of administration in England, was conducted by officers appointed by the archbishops and bishops of the Established Church. In every city which was the seat of a bishop’s see, a court existed, called the Diocesan Court, presided over nominally by the archbishop or bishop, but really by a proctor or barrister, who was the representative or ‘official principal’ of the ecclesiastical dignitary; with a limited number of proctors—that is, ecclesiastical lawyers—who possessed the exclusive privilege of proving wills, and whose posts were very lucrative and much coveted. Besides these Diocesan Courts, a multitude of smaller courts were scattered up and down the country, variously called Archidiaconal, Prebendal, Peculiar, or Manorial Courts, all having the power of making grants of probate or administration in their respective localities, and whose operations frequently resulted in confusion, uncertainty, and needless expense. An investigation into the origin of these small courts discloses in almost all cases curious and interesting features of those times when the authority of the Church penetrated deeply into every portion of society, and into nearly every transaction of life.
All these courts, large and small, were swept away in 1857. After several abortive attempts by successive governments, and in the teeth of great opposition from the interests affected, a measure was carried through parliament, mainly by the energy of Lord Westbury, abolishing the entire system, and creating a court new to English jurisprudence, the Court of Probate. The antique fabric embracing the Prerogative, Diocesan, and Peculiar Courts, with their vicars-general, ordinaries, advocates, surrogates, and apparitors, vanished like a dream before this drastic ordinance. The exclusive privileges of the proctors were put an end to, and all kinds of testamentary business thrown open to the legal profession. It was a rather costly process. Large compensations had to be paid to the superseded functionaries, as is not unusual in such cases; but the extinction of an effete system, and the substitution of a tribunal and a procedure adequate to the requirements of the times, were imperatively called for.
The Court of Probate thus constituted is not only a court for hearing and determining causes connected with contested wills and disputes among next of kin as to the right to property, but possesses also effective administrative machinery for the granting of probate and letters of administration. A principal Registry at Somerset House in London, and thirty-nine District Registries distributed over England and Wales, are attached to the court, and from these registries the grants of probate and administration with which most people are familiar issue.
Did the reader ever prove a will? The phrase has a rather formidable sound, but the proceeding is a sufficiently tame and prosaic affair. A will is ordinarily ‘proved’ in the following manner: The executor named in the will takes it to a solicitor, and furnishes him with particulars of the name, residence, and date of death of the testator; his (the executor’s) own name, residence, business, and relationship to the deceased; with an account of the nature and value of the property. This information is embodied in two affidavits—printed forms with blanks left for the details—which the executor signs, and is sworn to. The will and affidavits are then lodged by the solicitor either in the principal probate registry in London or in one of the district registries, according to the locality in which the testator resided. The documents being in proper order, a form on parchment is filled up in the probate registry, reciting the particulars contained in the affidavits; and to this form is attached a copy of the will, likewise written on parchment. The two together constitute ‘the probate;’ and when this is signed by the registrar and sealed with the seal of the court, the will is said to be ‘proved.’ The original will is forthwith enrolled and indexed in the books of the registry, where it can be perused by any person on payment of a fee of one shilling.
In proving a will, the executor may now either employ a solicitor to prepare the affidavits and take all trouble off his hands, as mentioned above, or he may apply personally at the registry for probate. Facilities for so doing are provided by law, and the grant is obtained at a lower charge than would have to be paid if the services of a professional man were engaged. The modus operandi is as follows: The executor himself lodges the will in the probate registry, and furnishes to the officers there the particulars already enumerated as to the testator, himself, and the property. The necessary affidavits are prepared in the registry, and there signed and sworn to by the executor, who must at the same time pay the registry charges and the probate duty. In case the attestation clause to the will is wanting, or is not in the form required by law—circumstances which frequently occur—a further affidavit is prepared; and one of the witnesses to the signing of the will must attend at the registry and be sworn to such affidavit. In a few days afterwards, the probate of the will is issued to the executor, who can then proceed to deal with the property.
When a deceased person has made no will, but has left money, furniture, shares, or other property not being land or houses, the law steps in, and in effect makes a will for him, by dividing such property amongst his nearest kindred in certain proportions, which are pretty generally known. The instrument authorising a particular person to make the division is called Letters of Administration. If the deceased has left a widow, she is the person entitled to administer; if no widow, then the children; and if no children, then the relative nearest in blood. The widow or relative applying for administration attends at the probate registry in the same way and furnishes the same particulars as an executor who applies for probate of a will, with this addition, that the applicant for administration must enter into bond, and provide two persons of full age, who are willing to become his or her sureties for the faithful distribution of the property. Whether the estate of a deceased person be large or small in amount, the executor or administrator has the option of applying personally at a probate registry for the grant, and in every case by so doing he effects a considerable saving of expense.
The fiscal legislation of the last few years has been very favourable and indulgent to persons administering small estates. At the present time, if a man dies without a will leaving personal property not exceeding a hundred pounds, his widow or children can apply to the probate registry of the district—or if residing more than three miles from such a registry, to the registrar of the County Court of the district—for letters of administration; and the grant will cost only from five to thirteen shillings, according to the value of the property. The children of a widow are entitled to the same privilege.