This book is the product of painstaking research in the records of testamentary litigation in the Prerogative Court of Canterbury in the second half of the seventeenth century.
The book is divided into ten chapters. Chapter 1 explores the “culture of will-making” (15) in early modern England: who made wills, and how and when and why. The surviving sources suggest that “relatively few” (19) individuals made wills, with women doing so “far much less frequently” (21) than men. Occurring closer to the moment of death than in the modern period, testation in early modern England was prompted by one or more of four factors: “the desire to craft an individualized inheritance strategy” (20); “the exhortations of others” (22), especially clerics, who viewed the settling of earthly affairs as a “Christian duty” (25); the testator's desire to “minimize … familial conflict” (25); and “the desire to select … [an] executor” (26).
Chapter 2 examines the history in England of ecclesiastical probate jurisdiction. This jurisdiction was well settled and “largely untouched” (52) by Parliament until the second half of the seventeenth century. Putting to one side the short-lived interregnum legislation abolishing the Prerogative Courts of Canterbury and York and replacing them with a secular Central Probate Court, there were two lasting reform statutes: the Statute of Distribution of 1670 and the Statute of Frauds of 1677. The latter is the focus here. The Statute of Frauds “tightened the requirements for will validity” (58). Directions for the deathtime transmission of land were required to be “in writing, signed by the testator, and witnessed by three or four credible witnesses” (58). The statute also had provisions, substantive and procedural, governing oral wills of personal property.
Chapter 3 surveys the issues raised in testamentary litigation between 1660 and 1700. The “most common will challenges focused on the mental state of the testator” (70), with a “second group of controversies” (71) about a written will's authenticity, and a third group about the validity of an oral will (72). The chapter explores the extent to which the provisions of the Statute of Frauds may have been designed to respond to “vexing issues that arose in testamentary causes” (76). The statute's provisions on oral wills do seem to have been effective in reducing litigation about their validity: such causes represented 31.8% of the will contests between 1661 and 1676, but only 3.6% between 1681 and 1696 (73, table 3.2). With respect to other issues in litigation, however, the Statute of Frauds “did little … to lighten the burden of the Prerogative Court” (77).
Chapters 4 to 7 dig deeper into the issues raised in litigation and the “strategies used by litigants to raise [them]” (79): testamentary capacity and undue influence in Chapter 4, the validity of oral wills in Chapter 5, the authenticity and proper execution of written wills in Chapter 6, and the problem of multiple wills—in modern parlance, revocation by subsequent instrument—in Chapter 7.
The final chapters use the records of probate litigation to shed light on “social relationships” (178) in early modern England: clandestine or contested marriages in Chapter 8, family discord and disinheritance in Chapter 9, and the role of women in testation and probate litigation in Chapter 10.
A short review cannot encapsulate the richness of these chapters. Legal, social, and economic historians will find much of value. Also of great benefit is a detailed appendix with a primer on early modern probate jurisdiction and a discussion of the primary sources used in this study.
No monograph can answer all of the questions it raises. The book's excellent discussion of the provisions of the Statute of Frauds on oral wills (in Chapters 3 and 5) left me wanting more discussion (especially in Chapter 6) of the legislative history, scope, and effect of the statute's provisions on written wills. Why, for example, did the statute not contain requirements for the execution of written wills of personal property? And why did litigation increase about whether a written will was properly executed: from 4.7% of the causes between 1661 and 1676 to 10.9% of the causes between 1681 and 1696 (73, table 3.2)?
Bonfield's book sheds important light on legal and social understandings very different from our own, yet in some ways strikingly familiar. The Prerogative Court of Canterbury admitted imperfectly executed documents to probate if there was good evidence that the testator “intended the document” as a last will (133). This case-by-case inquiry was replaced by strict adherence to formalities under the Wills Act of 1837. Only in our own lifetimes (see, e.g., Uniform Probate Code §2-503) has the law of succession regained its sensible flexibility.
