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Caro
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PostSubject: Wills   Wills EmptyFri 14 Feb 2020, 01:33

We had an odd article in our online news site. It was about a will written in an email unsent and was considered valid. As well as that example there was a 1948 one where a man wrote on a tractor fender a will leaving everything to his wife "In case I don't get out of this mess". (He was stuck under the tractor.) Odd wills

It led to wonder about other odd wills that were considered valid, and why these met the criteria which include having it signed by witnesses, which neither of these did. I also wondered when wills came to be and if they are made in all societies. Here in NZ we have had lots of cases where families have fought over wills and sometimes the decision has defied common logic. We have also had fights over burial places, especially between a Pakeha and Maori couple where the Maori family have wanted their relative to be with them, and the European partner thinks they would want to be buried together. 

Anything else historical about wills could be discussed too.
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LadyinRetirement
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PostSubject: Re: Wills   Wills EmptyFri 14 Feb 2020, 08:43

Caro, I can't remember the case but I did a course about winding up of estates (most of which I have forgotten so I don't advise anyone to think of me as a fount of knowledge in such matters!).  I know there was a case many, many years ago where the will was either written in pencil or was signed or witnessed in pencil and it was deemed to be valid.

Some people make "living" wills i.e. wills to camera now.  I'm  not sure if those are considered valid in the UK.  I can remember there were some special clauses that pertained to wills made by serving military (or marine or airforce I suppose) personnel in times of war.  As I say, I'd have to look these up.  I still have my CD with the course from the Institute of Legal Secretaries and Personnel.

I know of a case myself where a man left all his property to his second wife in a will he made himself. What he wanted was to cut down on legal fees and he trusted his wife to distribute assets according to his wishes and fairly to the children of his first marriage and his grandchildren.  It didn't have a happy ending because the grown-up children were angry and wouldn't sit down with the second wife to discuss matters and a lot of the estate was eaten up with legal fees between the two parties.  I think the second wife would have respected her late husband's wishes and made a fair distribution of the estate.

This doesn't exactly pertain to wills but a lady from the French group I attend weekly administers humanist funeral services and she said that people who have co-habited for many years still don't have a say about what happens to the assets of the partner who goes first.  I thought that writing a clause into the will could get around that - though it would seem important for people who prefer to live together to make a will.  Family law has changed since I was a legal secretary because of civil partnerships etc.  A marriage that takes place after a will is made does supersede a will unless the testator/trix changes his/her will.

The above only pertains to the UK and it's possible my notes from the Institute of Legal Secretaries and Personnel may be a little behind the times at this moment when I type.
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PostSubject: Re: Wills   Wills EmptyFri 14 Feb 2020, 09:15

In the UK the instructions for the disposal of one's property after death are usually referred to as a 'will and testament'. I always thought this was because a 'will' was limited to real property (ie immovable things like land and buildings) while 'testament' applied only to dispositions of personal, moveable items ... however historically the two terms seem to have often been used interchangeably. Apparently the phrase 'will and testament' derives from the period in English law when Old English and Law French were used side by side for maximum clarity: will being the English; testament the French. This tradition of double-barrelled phrases is widespread in English law, occuring in such phrases as; breaking and entering; fit and proper; goods and chattels; had and received; peace and quiet; right, title and interest.

I'm fairly sure that in Britain a will is usually expected to be typed (presumably for clarity) and then witnessed as being what was really intended by the testator. By contrast in France a will is usually only valid when hand-written by the testator themself, and so once duly signed by them it does not need witnessing ... unless of course the testator is physically unable to write, whereupon, it does need to be typed and then witnessed by at least two (I think) unrelated persons. I wrote my current French will in the notaire's office, copying her standard formula of words while she went for a coffee. I then sealed it, signed of course but unwitnessed, in an envelope which was then given a national database reference number and it was duly lodged in the notaire's safe - the location, ie the notaire's Perpignan office, being recorded on the national database.

Interestingly my earlier English will had, unbeknownst to me, been rendered invalid when my French Civil Partnership (dating from March 2003) was later made equivalent to a British Civil Partnership, and so legally also equivalent to a marriage, by UK law in December 2005. Under UK law a will is automatically rendered invalid when you marry (or divorce) and so through no action by myself, and indeed without my even being aware of it, for some two years my English will wasn't actually valid.
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PaulRyckier
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PostSubject: Re: Wills   Wills EmptyFri 14 Feb 2020, 20:19

MM in Belgium you can have a will or testament even on a piece of paper, handwritten, dated and signed. And it is legally valid. But many times if there is something to earn for the family it can lead to year long battles where all the money goes to laywers.
Better to do it with a "notaris, notaire" (notary? solicitor?) in the presence of two witnesses.

More and more in Belgium there are people, who in life and being still mentally competent with a notary and two witnesses nominate a person you can trust to look for you in the case when you become mentally incompetent. Normally that is not necessary as for instance Caro has a whole family that she can trust, but it isn't everywhere the case. Of course you have to trust this person completely, while you give him or her the full competence on your belongings and money and you have to trust the person that he will care for you with services that are good for you, as for instance health care authorities.

The word: "zorgbeheerder" seems not to have an English translation. Just in French:
https://mymemory.translated.net/en/Dutch/French/zorgvolmacht

Kind regards, Paul.
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PostSubject: Re: Wills   Wills EmptySat 15 Feb 2020, 08:26

The last will (dated 30 May 1832) of the English philosopher and social reformer, Jeremy Bentham, specified that his body was to be dissected by the physician Thomas Southwood-Smith and then his skeleton preserved and put on display as an "auto-icon". On 6 June 1832, two days after Bentham's death, Southwood-Smith invited a select group of friends to the Webb Street School of Anatomy & Medicine in Southwark were he delivered a lengthy oration over Bentham's remains. Then over the following weeks he duly carried out Bentham's wishes. Bentham had intended that the auto-icon incorporate his actual head, mummified to resemble its appearance in life. However Southwood-Smith's experimental efforts at mummification, based on practices of the indigenous people of New Zealand and involving placing the head under an air pump over sulfuric acid and drawing off the fluids, although technically successful, left the head looking distastefully macabre, with dried and darkened skin stretched tautly over the skull. The auto-icon was therefore given a wax head, fitted with some of Bentham's own hair.  The rest of his skeleton was mounted and dressed in a set of Bentham's clothes suitable padded out with hay.

Here he is still seated in his wooden case at the end of the South Cloisters of University College, London, where he's been since 1850. The real head was displayed in the same case for many years but became the target of repeated student pranks and so it is now usually kept securely locked away.

Wills Jeremy-Bentham-Auto-Icon
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nordmann
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PostSubject: Re: Wills   Wills EmptySat 15 Feb 2020, 12:01

The crucial legal aspect of a will is that it indicates, with little fear of contradiction, the actual wishes of the actual person, expressed in as honest a representation of those wishes as the person could have utilised. Hence the "sound mind" caveat, a long recognised requirement in a society where wills apply very often to deceased individuals who may have succumbed to dementia or senility before they passed away.

The actual method of recording a will - the materials used, that it was witnessed, etc - is secondary therefore to the legally challengeable question of whether it could not have been superseded by another will constructed in a different manner and containing potentially different content. In this context then the stranger the circumstances of the will the more this can, under a later challenge, undermine confidence in how much "sound mind" played a part.

The man trapped under his tractor, though obviously under duress, could also easily be demonstrated from the content of his will to be thinking clearly and, obviously, not in a position to run off and get it witnessed and notarised in the normal manner. Being also obviously his final will then the very circumstances in which he wrote it actually help it to supersede any pre-existing will.

On the other hand, should a farmer simply walk over to his tractor and scrawl a will on it before succumbing to an unexpected heart attack shortly afterwards, then the validity of the "document" in terms of his state of mind diminishes in potential in as much as the trapped farmer's was enhanced, despite the modus operandi being identical.

The British Museum once staged a small exhibition I was lucky enough to coincide with when I was there one time which was a collection of strange wills (in terms of materials used) that had been contested in court over the years. The materials used ranged from a used serviette to a cow, and in every case the legal issue was not the validity of the material but whether the will validly superseded previous more conventional forms, or even where no preceding document existed, whether the choice of material indicated a lack of "compo mentis" on the part of the author. In most cases the challenge failed, though the court also traditionally used a large amount of discretion in augmenting the will's articles with provisions that the law could reasonably assume had been omitted given the limitations of the modus operandi that had been employed.
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LadyinRetirement
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PostSubject: Re: Wills   Wills EmptySat 15 Feb 2020, 12:30

My remembrance of a will signed (or witnessed) in pencil pales into insignificance after what MM and nordmann have mentioned.  I'm old enough to remember a TV series from the late 1960s (early 1970s) dramatising some of A P Herbert's "Misleading Cases".  One of them featured a cheque being written on the side of a cow - I wonder if A P Herbert took inspiration from the example nordmann quotes of a will being written on a cow.
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nordmann
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PostSubject: Re: Wills   Wills EmptySat 15 Feb 2020, 12:52

The cow case was especially interesting and occurred in the 1950s, so many years after Herbert's cow story but which the intending testator might well have used as inspiration. He had shaved the animal's flank and written the will crudely using indelible dye. He then promptly disappeared, leaving a wife and some children behind on the farm facing penury, unable to do much until such time a coroner might declare the author dead, or the discovery of a corpse prove the fact.

The "will" was discovered when the animals were being rounded up for delivery to an abattoir and apparently left his possessions, including the farm, to his brother. The animal was slaughtered and the "will" portion preserved on instruction of the coroner. In the meantime the brother assumed the reigns of the farm while the family remained in the farmhouse, an arrangement that suited neither party but which circumstances more or less dictated until some legal resolution could be arrived at.

A few years later a verdict of probable suicide was returned by the coroner, at which point the legality of the will was then challenged, not only by the widow but by the coroner himself who was a little suspicious regarding how much access the brother might have had to the animals beforehand. The implication, though never stated, was that he might have actually written the thing himself, so the first point of challenge was the actual authorship.

The text of the will, crude and short and written laboriously with a "hide pen", was "signed" using a form of the man's name that he only ever used on official documents, and this was deemed sufficient to indicate probability of authorship. However the story ended a little more happily for the widow than it might have - the court also found that the estate could not legally transfer as intended in the will to a third party and that the widow's right of ownership could not be compromised through this method. However it also found that the man obviously intended that his brother should at least manage the property after his death, and in fact the widow and her brother-in-law ended up doing just that. She retained the house and farm, leased some of it to the brother-in-law, and retained him as farm manager for her portion. We don't know how long or how well this arrangement lasted, but at least the dead cow, whoever scribbled on her, had played some role in allowing the court to intervene and broker some type of arrangement that suited all parties.
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PaulRyckier
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PostSubject: Re: Wills   Wills EmptySat 15 Feb 2020, 13:09

Thank you very much nordmann for this survey.

And indeed it is interesting that you mentioned the latest will in time or date, while this one supercedes all previous ones. And also the emphasis that one, who writes his will has to be, as I mentioned too in the carer taker paragraph, mentally competent.

I am old enough, as LiR, to have witnessed strange circumstances about wills, as after a suicide having to search the house for the notary, to see if there was no hidden will from that dead person. And perhaps a wise deed, as I mentioned for the care taker, to have a paper from the general practician, to prove for the notary that you made your will mentally competent...

The oddest will I heard from, but I was not an eye witness...the last will in date written on the not printed side of a beer mat (coaster?) in a café.
Although one can ask if the man was mentally competent on the moment of writing...no problem if it was a "clochard", but for the possible heir apparents it can be of value, especially if their is property or money involved...but yes even about a clochard, one is never sure if he hasn't some hidden castle somewhere...

Kind regards, Paul.
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PostSubject: Re: Wills   Wills EmptySat 15 Feb 2020, 13:32

nordmann about the cow case and some comments from me...

Yes strange things can happen between families when property and money are involved. Some fifty years ago I was witness of a quarrel between families about a hand written will with a signature (in that time there were not that many wills with a notary). A years long legal  discussion between the heir apparents for the signature, including graphologues from both parties. 

Therefore I take a notary as my signature is always quite different as from the mental circumstances of the moment Wink

In the partner's family a life long no contact because of their parents' heritage...
In one of my uncle's (I had six of them) the same for the same reasons...

One older friend of the factory about the "inboedel" (they translate household effects) from the last parent after his dead. And they were with some twenty with the partners included. There was a lot of controverse of the dividing of that household effects, and on the proposal of my friend they have burned (no such environment rules as today) the whole composition in the garden with mutual consent of the heirs apparents...

Kind regards, Paul.


Last edited by PaulRyckier on Sat 15 Feb 2020, 19:00; edited 1 time in total
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LadyinRetirement
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PostSubject: Re: Wills   Wills EmptySat 15 Feb 2020, 15:39

How a married couple own a house has a bearing on how it is inherited.  If they own the house as "joint beneficial tenants" (may just be known as "joint tenants" now), then when one spouse dies the surviving spouse would automatically inherit the whole house (even if the deceased spouse had made a clause in his/her will leaving half the house to someone other than the surviving spouse that clause would be invalidated).  If a couple own a house as tenants-in-common in equal (or unequal) shares then a spouse is free to leave his/her share of the house to whomsoever he wishes, it does not have to be his/her spouse.
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PostSubject: Re: Wills   Wills EmptySat 15 Feb 2020, 15:47

An internet search brought up a list of 11 unusual wills (including the Jeremy Bentham case cited above).  I'll provide a link but won't mention them all.  One that caught my attention was a hotelier, Leona Helmsley left $12 million to her dog.  This was more than she left to some of her grandchildren who contested the will and the dog's inheritance was whittled down to a mere $2 million.  https://www.everplans.com/articles/11-unusual-wills-burial-requests-and-final-wishes
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Green George
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PostSubject: Re: Wills   Wills EmptySat 15 Feb 2020, 20:47

Please stop citing the UK in this. Scots law is different from the other jurisdictions - for example a holograph will (i e in the testator's own hand) has never required to be witnessed to be valid (nor, in either jurisdiction, does a serviceman's paybook will).
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PostSubject: Re: Wills   Wills EmptySun 16 Feb 2020, 03:21

We in NZ seem to have taken on English law; I am not sure why in the south Scottish law didn't prevail more, but maybe it had to do with the Treaty of Waitangi which was between the Crown and Maori. I don't know what Maori protocol was on death - property was (and in many cases still is) joint. Now it is often in a trust. (I don't really know the specifics.) NZ wills in law

I gather most soldiers were encouraged to make wills before they left for service. My father put down his mother as next of kin and all his letters home were addressed to his mother, though he worked for his father on the farm, and sometimes mentioned him in his letters (mostly to question his decisions, eg using horses when tractors were the coming thing). I have not heard he was not on good terms with his father and now there is no-one to ask except an aunt-in-law who would have been quite young then and didn't marry into the family till after my grandfather had died.
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LadyinRetirement
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PostSubject: Re: Wills   Wills EmptySun 16 Feb 2020, 10:26

You are of course correct, Gilgamesh.  Some of the historical (and not so historical) whodunnits I've read (I do have a weakness for the genre) have been written by Scots writers so I should have been aware of that fact.  The point about Scots law that sticks in my mind isn't to do with inheritance and probate law - it's the one where besides having a possibility of a verdict of "guilty" or "not guilty" in a trial there is also an option for "not proven".  I don't know a great deal about all the ins and outs of the differences though there is always Google for a start.  I watched a video by a writer who said he had once taken something from the internet for one of his books which had turned out to be wrong (I guess he was grateful for a good editor).  Still, I must not stray from the subject of this thread.

The solicitor I worked for the longest when I was a legal secretary wouldn't tackle contested estates.  He would draft wills and handle the winding up of estates but not cover cases where people wanted to fight a will.  He also did conveyancing work.  I've heard of complications arising when people have possessions in other countries or possibly have dual citizenship.  It is legal in the part of the UK known as England and Wales for a person to leave their belongings to whomsoever they wish but in some countries (don't ask me which) it is illegal to disinherit one's children (if one has any).  Of course disinherited children DO contest wills in England and Wales.

MM mentioned the concept of a "will and testament" upthread.  Another doubling up of words with not dissimilar meanings is the clause whereby someone states they "devise and bequeath" or "bequeath and devise".  My understanding is that "bequeath" is used in relation to movable or personal belongings whereas "devise" refers to real or immovable property such as houses or land.
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Green George
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PostSubject: Re: Wills   Wills EmptySun 16 Feb 2020, 21:48

Ah yes - "Not Proven" aka "Not guilty but don't do it again". I suspect that may have something to do with juries - aiui Scots juries are 15 strong, and the verdict is a straight majority (I think 11-1 and 10-2 verdicts in England & Wales are younger than I am), so perhaps a "compromise" could defuse many cases.
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nordmann
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PostSubject: Re: Wills   Wills EmptyMon 17 Feb 2020, 08:00

In any jurisdiction that I'm aware of a will presented as "unum exemplum" (the only form of it) rarely if ever requires to have been witnessed to be deemed legitimate per se - often by its very nature it cannot have been witnessed (as with the poor farmer trapped under his tractor). A sadly frequent occurrence is when the only documented evidence of a person's last will and testament is their suicide note, for example, and though highly contestable a document it will be afforded access to probate if that is the only thing available and that is the route the interested parties want to pursue.

Where jurisdictions differ greatly is in the aspect of this access to probate in cases of such highly contestable testament. Within the USA each state has its own way of processing this access, for example, and as far as I know there are no two states with exactly the same law in this matter. Within the UK, as Green George infers, there are also fundamental differences between English/Welsh and Scottish law regarding probate too. In Norway it gets even more diverse - despite a common law regarding probate, admission to probate rests largely with individual coroners' deliberations on a case by case basis, the coroner being "kommune" appointed, with no precedence inferred from any single case, or at least certainly not national precedence.

So, while in all jurisdictions it certainly pays to draw a will up legally and to have it attested as genuine in whichever manner the law prescribes, the latitude regarding multiple wills, "unwitnessed" wills, and even wills scribbled on the side of cows, is huge when multiple jurisdictions are considered, often even within one country.
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LadyinRetirement
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PostSubject: Re: Wills   Wills EmptyMon 17 Feb 2020, 10:04

When I worked as a legal secretary I was sometimes asked to witness wills but all I had to witness was the signature and not the contents of the will (although I was usually the person who would have typed the will anyway).  I didn't commit the contents of wills I typed to memory because it was a routine job and I found it quite boring - though I did need to ensure I was accurate.
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PostSubject: Re: Wills   Wills EmptyMon 17 Feb 2020, 16:43

When I was studying local history, we spent time studying wills, from the (in my opinion) highly suspect one of Wulfric Spott, to the common nuncupative wills of less distinguished people - in which the bed was a frequent bequest a la Shakescene.
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PostSubject: Re: Wills   Wills EmptyMon 17 Feb 2020, 20:03

@LadyinRetirement wrote:
MM mentioned the concept of a "will and testament" upthread.  Another doubling up of words with not dissimilar meanings is the clause whereby someone states they "devise and bequeath" or "bequeath and devise".  My understanding is that "bequeath" is used in relation to movable or personal belongings whereas "devise" refers to real or immovable property such as houses or land.

LiR,

we have in Belgium this "onroerend goed" (immovable property) too as the "roerend goed" (movable property)...
The tax table for immovable property is quite higher than for money inheritance also...

But as I guess contrary to England, which on the first sight remains still in the time of kingship before Napoleon, we and the Dutch have still a lot of legal texts in our "testaments" (wills) inherited from the "Code Napoleon" or better the "code civil"...

Influence in the Netherlands of that code Napoleon...
Found only in Dutch for Dirk Marinus:
https://olenz.nl/actueel/de-invloed-van-de-kleine-keizer-op-ons-nederlandse-erfrecht/
(The influence of the little emperor on the Dutch heritage)

If you want to know it all about Belgium:
https://issuu.com/taxation.be/docs/rest_in_peace_2017

About the famous laws in France:
https://www.loc.gov/law/help/inheritance-laws/france.php

LiR, and it is all due to the Code Napoleon, in Belgium you have "reservataire erfgenamen" (reserved? heir apparents) who you can't disinherit up to the "reserved" part in your testament. One child: 1/2 of the inheritance reserved. Two children: 1/4 for each...

Kind regards from Paul.
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PostSubject: Re: Wills   Wills EmptyTue 18 Feb 2020, 21:46

Not relating to a will but to someone having died intestate Trike mentioned an interesting case in the first entry in this thread from a few years back.  I also noticed that the trial by combat trial I mentioned in the old-fashioned laws thread had already been mentioned by nordmann some time back on the historic trials thread.  I never deliberately duplicate subjects but I've only lately become anything like reasonably successful when I've done a search on this site to find if something that has caught my attention has already been mentioned.  https://reshistorica.forumotion.com/t689-historical-legal-cases?
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PostSubject: Re: Wills   Wills EmptyWed 19 Feb 2020, 22:08

Just been reading about Lady Glenconner's reaction when she learnt her husband had left several million to a servant. Will post more about it tomorrow - no time now, i'm afraid. I'm on a borrowed computer.
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PostSubject: Re: Wills   Wills EmptyThu 20 Feb 2020, 09:16

Anne Glenconner, born Lady Anne Coke, is the descendant of Sir Edward Coke, who was considered "the greatest jurist of the Elizabethan and Jacobean eras". Lady Anne was a Maid of Honour at the coronation of Elizabeth II and her family owns Holkham Hall and most of North Norfolk. In 1956, she married Colin Tennant, the heir to the vast Glenconner estates in Scotland, a family whose fortune came from manufacturing bleach. They had their own merchant bank, C. Tennant and Sons. He was an aristocratic "catch", but appears to have been something of an eccentric, or barking mad, according to how charitable you want to be. Tennant later became Lord Glenconner, the man famous for turning the island of Mustique, a mosquito-infested wilderness, into an exclusive holiday place for the rich and famous, notably Princess Margaret and Mick Jagger, both of whom who attended wild parties thrown on the island, parties that cost Glenconner thousands and thousands of pounds. Glenconner spent money as though he had inherited the Privy Purse. He founded the Mustique Company and was worth millions, owning several other Caribbean islands, as well as a few prime acres (3,500) in Scotland, plus a chunk of Glasgow.

After Lord Glenconner's death, the family lawyer warned Lady Anne and her daughter-in-law (whose son, Cody, was the heir to the family's estates in Scotland and to the immensely valuable Mustique property) that a local lawyer had a new will, the contents of which were unknown, but which would be revealed on the evening of the funeral in St. Lucia. They were. Glenconner left everything to his personal servant, Kent, a young black lad who had served his master with great devotion. The short will, which was quite legal, simply said: "I hereby leave everything to Kent Adonai, and I trust he will carry out my wishes towards the family."

Lady Glenconner, in her autobiography writes:

Afterwards I found Kent...and as calmly as I could, I said, "Well, Kent, I hope you will carry out Lord Glenconner's wishes to us all."

He looked at me, shrugged his shoulders and said, "I don't know what Lord Glenconner meant."

I knew then that my worst fears had come true...Later that night I stood on the balcony of the house that no longer belonged to us...As I stood there, my entire married life flashed before my eyes. Fifty-four years. Five children. A marriage filled with Colin throwing as many tantrums as parties. And now, after everything I had been through - this. This was the last attention-seeking gift. It was such a terrible humiliation. And to do it to our children... I despaired. Going against everything my mother had always taught me, I let emotion take over and screamed and screamed into the pitch-black night.


When your husband leaves everything to a servant in an "attention-seeking will", keeping a stiff upper lip is impossible, even for the grandest of English aristocrats.

A seven-year-long legal battle ensued: in the end the family got to keep Glen, the estate in Scotland, and half the family fortune, but Kent kept the other half!

Anne Glenconner now lives in what no doubt seems to her to be a poky little farmhouse on the Coke estate in Norfolk, appears in "documentaries" about the royal family, and sells her autobiography on Amazon.
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Green George
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PostSubject: Re: Wills   Wills EmptyThu 20 Feb 2020, 23:06

Perhaps the most influential Coke was Thomas, 1st Earl of Leicester. He, along with "Turnip" Townshend, was largely inspirational in the adoption of the "Norfolk" or "Four-course" rotation, which, by raising yields, allowed the British population to rise, once more, above the 5 million level, and, this time, stay there. This, according to some authorities, provided the labour force to initiate industrialisation.

Footnote - this rotation, wheat - barley- clover - turnips, was, of course, already common in Flanders.
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PaulRyckier
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PostSubject: Re: Wills   Wills EmptyFri 21 Feb 2020, 19:02

@Green George wrote:
Footnote - this rotation, wheat - barley- clover - turnips, was, of course, already common in Flanders.
 
Gilgamesh, yes that flat part of the nowadays Belgium. At that time, the former county of Flanders had already a rich past.

Footnote: To tease some nowadays! "Flemish Nationalists"  Wink

Kind regards from Paul.
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Vizzer
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PostSubject: Re: Wills   Wills EmptySat 22 Feb 2020, 12:13

@Caro wrote:
We in NZ seem to have taken on English law; I am not sure why in the south Scottish law didn't prevail more

This stems from the failure of Scotland’s colonies in the 17th century which was also one of the main reasons behind the Treaty of Union with England in 1706. Scots law had applied in Nova Scotia between 1621 to 1632 but for most of that time it was on paper only. Scottish colonists only began arriving there in 1629 (i.e. 8 years after the royal charter for the colony had been issued) and then only remained under Scots law for 3 years before Nova Scotia was retaken by France in 1632.

There were later attempts at establishing Scottish colonies in New Jersey and Carolina in the 1680s but those colonies were on territory nominally claimed by England so any application of Scots law by colonists there was likely to be contested in terms of territorial jurisdiction as was indeed the case. Finally there was the disastrous Darien scheme in the 1690s which had seen a Scottish attempt at colonizing territory claimed by Spain in what today is Panama. Hunger, disease and finally a military assault by Spanish forces put paid to that endeavor. England had remained neutral during that conflict not wanting to risk a costly and damaging war with Spain which supporting the Scottish colonists would have entailed. Scotland’s bodies politic and economic were thus diplomatically demoralized and fiscally bankrupt and so union with England seemed the obvious next step. A consequence of the Acts of Union in 1707 was that all British colonies and overseas territories would henceforth be subject to English law rather than Scots law.

It would have been fitting had some territories been under Scots law (and some maybe even some under Irish law) to make the Empire a genuinely ‘British’ enterprise but political expediency meant that this just wasn’t to be the case. There are certainly plenty of territories which could have been established (or re-established) under Scots law and these include the aforementioned Nova Scotia but also Georgia (the only one of the Thirteen Colonies to be founded after the 1707 Union) and New Zealand or (as suggested) the South Island or even just the southern part of the South Island, and also Western Australia.
 
Irish law (both north and south) is more akin to English law than to Scots law and the common law in Ireland is basically the same as that which exists in England (including Wales, Cornwall, Lancaster and Berwick-upon-Tweed), America (excluding Louisiana), Canada (excluding Quebec), Australia, New Zealand, Jamaica, Barbados and the Bahamas etc. Territories which (also in an alternative past) might conceivably have been established as operating under Irish law could have included Maryland in North America, Montserrat in the Caribbean and Queensland in Australia among others. The distinction between an English-law colony and an Irish-law colony would really have just been a nominal or an honorary one in practice but in terms of ‘Britishing’ both the UK and the Empire it could have been invaluable.

The case of Maryland is noteworthy as its colonial history both started and ended with wills. The colony was founded by George Calvert, and English catholic who had been ennobled by King James I as Baron Baltimore in the Irish peerage. Calvert spent his life trying to establish a North American colony which would be a safe home for both catholics and protestants. His first attempt was on Newfoundland (in its south-east Avalon peninsular) but a series a harsh winters prevented a successful colonization there. He later shifted his attention southwards to Virginia where he met with opposition from existing colonists there. However, in 1632 he finally managed to persuade King Charles I to grant a delineation of land and a charter for a new colony to be located to the north of Virginia and to be named Maryland. It would be a bizarre shape on the map cobbled together from bits of other territories. He received the news on his deathbed so he drew up a will naming his son Cecil as ‘proprietor’ of the new colony. Thus when the charter establishing Maryland was officially proclaimed a month after George’s death, it became the first colony to be the subject of a feudal inheritance even before it was created.

140 years later, Maryland was still a proprietorial colony having been passed down thru the family line to Cecil’s great-great-grandson Frederick Calvert. Whereas George had been a hands-on and energetic colonialist even travelling in person to Newfoundland and Virginia in pursuit of his dream, his descendant couldn’t have been more different. Frederick was an absentee landlord, living a dilettante life off the wealth from his Maryland estates many of them slave-owning. The only real interest he showed in the colony was to block the resolution of a long-running boundary dispute with neighbouring Pennsylvania, the settling of which had been the will of his late father Charles, the 5th Baron Baltimore. Frederick was also something of a louche character who was accused of raping a milliner, suspected of murdering his wife and who spent much of his time with a harem which he had assembled in Constantinople and which then accompanied him on an aimless grand tour of Europe. He died in Naples in 1771 but not before having named his illegitimate son Henry as successor. The colony was set to recognise Henry as the new governor but Frederick’s sister Louisa challenged the will in court on the grounds of her nephew’s illegitimacy and also her brother’s dissolute character and moral weakness. In the end both Frederick’s will and the court challenge would both prove to be academic because the War of American Independence saw Maryland end the crown’s role in its governance. The hereditary governorship was also abolished before a judgement could be reached.

Wills 1_3606d2bc4516f4e0b994080ca63eb984

(Map of Maryland in the 18th Century. Note the Chesapeake Peninsular divided between Pennsylvania in the north, Maryland in the middle and Virginia in the south. The Lower Counties on the north-east coast of the peninsular only formally separated from Pennsylvania, itself a proprietorial colony of the Penn family, to set themselves up as the Colony of the Delaware just 3 weeks before the Declaration of Independence in July 1776. The weird boundaries, however, remained.)
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PaulRyckier
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PostSubject: Re: Wills   Wills EmptySat 22 Feb 2020, 19:11

Thanks Vizzer for this interesting survey. I see that it was not only in the Low Countries that there were troubles.

I don't know why, but the link I can't open.

OOPS, found it via google:

https://www.worthpoint.com/worthopedia/colonial-maryland-thomas-kitchin-cl-engraving-map-1
 
Kind regards, Paul.
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