Statute of Wills

Be it enacted . . . that all and every person and persons, having any manors, lands, tenements, or hereditaments, holden in socage . . . shall from the twentieth day of July . . . have full and free liberty, power, and authority, to give, dispose, will, and devise, as well by his last will and testament in writing, or otherwise by any act or acts lawfully executed in his life, all his said manors, lands, tenements, or hereditaments, or any of them, at his free will and pleasure . . . And that every such person . . . that hath, or shall have, any manors, lands, tenements, or hereditaments, holden of the King's Highness . . . by knight's service . . . shall have full power and authority . . . to give, dispose, will, and assure to any person or persons . . . at his free will and pleasure, two parts of the same manors, lands, tenements, and hereditaments, in three parts to be divided.

Editorial note. At common law, freehold estates were not devisable by will. Practitioners had circumvented that rule by feoffments to uses declared to take effect on death. The Statute of Uses closed the device, and Parliament conceded a limited but genuine testamentary power by the Statute of Wills in response to protests culminating in the Pilgrimage of Grace.

Editorial note. The declared purpose is to restore, in explicit statutory form, a limited power of devise over legal estates in freehold, while preserving the Crown's feudal incidents in respect of knight-service tenures.

Editorial note. Lands held in socage are wholly devisable by written will. Lands held by knight-service are devisable as to two-thirds; one-third descended to the heir by primogeniture, subject to wardship, marriage, and other feudal incidents.

Editorial note. The statute applied to legal freehold estates. Copyholds and terms of years were not within its language. The Tenures Abolition Act 1660 (12 Car. 2, c. 24) converted knight-service tenures into socage, thereby ending the two-thirds/one-third distinction and making all freeholds fully devisable.

Editorial note. The statute stands in direct textual dialogue with the Statute of Uses (1536) and was clarified and completed by the Statute of Wills (Explanation), 34 & 35 Hen. 8, c. 5 (1542–43). The Statute of Frauds (1677) later imposed writing and attestation requirements for wills. The Wills Act 1837 replaced the statute in England.

Editorial note. Every American power to devise real property by will—governed today by state probate codes and the Uniform Probate Code, and coordinated with modern will-formalities—descends from the Statute of Wills of 1540 as clarified and enlarged by the Tenures Abolition Act and the Wills Act.

Editorial note. The 1542 Statute of Wills (Explanation) clarified attestation, ambiguous devises, and the treatment of after-acquired property. Successive English statutes—Statute of Frauds §§ 5–6 (1677), Wills Act 1837—refined the form and effect of the devise. American colonial statutes adopted the statutory power of devise with local variations.

Editorial note. First, legal estates in freehold may be devised by written will. Second, the freedom of testamentary disposition may be qualified by feudal incidents (later abolished). Third, the writing must satisfy such formalities as the enacting law imposes.

Editorial note. Case law construed the statute's writing requirement liberally, subject to the more exacting attestation rules later imposed by the Statute of Frauds and the Wills Act. American cases treat the statute as the historical foundation of testamentary power over land and read the local wills act in that light.

Editorial note. Contemporary American probate practice—the will, the residuary devise, the anti-lapse rule, the doctrine of ademption, and the devise of after-acquired property—operates on the statutory foundation established in 1540 and refined by the Wills Act tradition.

Editorial note. See Statute of Uses, 27 Hen. 8, c. 10 (1536); Statute of Frauds, 29 Car. 2, c. 3 (1677), §§ 5–6; Wills Act 1837, 7 Will. 4 & 1 Vict., c. 26; Uniform Probate Code § 2-502 (formalities of a will).

Editorial note. Every American devise of real property—including devises of trusts of real property—executes the doctrinal power first conferred by the Statute of Wills.