History of Probate and Inheritance Law

The history of probate and inheritance law is a very interesting one:

Matters of inheritance have often been at the centre of wars and dramas. For example, in the 12th century, the war between Empress Matilda (mother of Henry II) and King Stephen was fought over the issue of whether the daughter of a son or the son of a daughter took precedence in the line of inheritance. The Hundred Years’ War, too, was fought over whether the French crown could pass through the female line: the English King Edward III claimed it through his mother, daughter of Philip IV, after all her brothers had died with no heirs. The French, quite understandably, would have preferred that the crown pass to the descendants of Philip’s brother, rather than accept the English King as their own.

To give a comprehensive view of this history, it is necessary to start with some background. For most of history, the peerage (titles) was generally hereditary and ran along the rules of primogeniture: the eldest son gets everything. If he dies, everything goes to the next son or next male relative. However, daughters and other members of the family may receive courtesy titles (e.g., Lady, Lord, The Honourable). This was codified principally in the Act of Settlement of 1701, which reinforced male-preference primogeniture for the British throne. Before it, the Bill of Rights of 1689 helped to ensure a Protestant succession to the throne.

More recently, the Succession to the Crown Act of 2013, which applies to people born after October 28, 2011, allows Catholics to access the crown and ends male primogeniture (under which a younger son could displace an older daughter).

It is important to consider that, generally, a gentleman was not permitted to work for a living (at least if he was to retain his place in society): the loss of his land and the following necessity of going to work would reduce him to the level of a tradesman. Unfortunately, this was the reality expecting most younger sons, as according to English rules the title and the entirety of the estate would go to the first-born son. Things were very different on the other side of the channel, where, for example, in France, the tradition was to divide the property amongst the sons of the family, which ultimately led to a weakening of the power of the people who had freehold land.

Common tools for the management of Estates in England were trusts, entailments and life estates.

Trusts: These were used to ensure that children benefited, in time, from wealth left behind by a parent. On the death of a property owner, the majority of their wealth would pass to appointed trustees. When the deceased owner’s spouse died, or when the children had reached adulthood, the property held in the trust was divided (or sold off by the trustees) and shared, usually equally, between the surviving children.

Entailments: This is the act of restricting the inheritance of property to the owner’s lineal descendants (or a subset of them). It was used most often to either prevent landed property from being broken up or being inherited by women.

Life Estates: Also called life tenancy. This is the ownership of immovable property for the duration of a person’s life. It is an estate in real property that ends at death, when the property rights revert to the original owner or a third party. The owner of a life estate is called a life tenant. The person who takes over rights upon the life tenant’s death is said to have a remainder interest and is known as the remainder man.

Women had a particularly precarious position, as they could not make wills without their husband’s consent: once a woman got married, all her property became her husband’s. Fathers would often leave property for their daughters so that they could keep their status in society. Generally, while men inherited the real property, women inherited personal property (most often sentimental items). When it concerned rights to their own property, unmarried women maintained ownership of all of it; married women’s property belonged to their husbands until the Married Women’s Property Act of 1882, which allowed them to own and control their own property. Lastly, widows could gain large amounts of wealth and regained rights over some of their property (which they could keep even if they remarried).

The Medieval Age (476AD–1450)

Entails were particularly prevalent at this time and came with two major implications: firstly, wives and children (especially daughters) of a patriarch were acutely aware that, upon his death, their survival would be at the mercy of their male relatives. Secondly, families had to keep meticulous records of their family tree to ensure that inheritances were dealt with correctly. The Statute of Westminster of 1285 formalised entails in English law, and it is partially still in force. It contains fifty chapters, but the most important is De Donis Conditionalibus: in grants to a man and his heirs, the will of the donor as expressed in the grant should be followed. The donee should have no power to dispose of the gift in any other way. After the donee’s death, the gift is inherited by his heirs.

The Regency Era (1811–1820)

By this point, English laws allowed for inheritance to pass through both male and female offspring. Despite this, for daughters to inherit was severely frowned upon, especially in the upper echelons of society. As a consequence, many heiresses were forced to scramble for eligible bachelors to marry so that they could maintain sociocultural integrity. However, the matter of female inheritance and succession was already regularized by operation of English common law since the 16th century, and it was based on two 12th-century Anglo-Norman legal principles: for unmarried women, the principle of Femme Sole had already existed since the Norman dynasty and it allowed an unmarried adult woman to control her own property (once married, she was no longer a femme sole and could only reclaim her independent property rights through widowhood).

For married women ruled the principle of (Femme) Coverture: a married man and wife were deemed a singular financial entity, therefore a married woman could not own property, run a business, or litigate in court until her husband died. Interestingly, in 1485, Margaret Beaufort was declared a Femme Sole by an act of parliament passed by her son, Henry Tudor VII, in spite of the fact that she was still married to Sir Thomas Stanley, Earl of Derby. Alongside queens of England, she is the only woman to have remained a Femme Sole during her marriage.

Within the book “The Law’s Disposal of a Person’s Estate Who Dies with No Will or Testament” (1787), Peter Lovelass describes the laws and customs of inheritance at the time. His inclusion in the appendix of “A man, possessed of money, plate, household goods, a leasehold estate for years […] gives it all to his wife” draws attention to the rarity of women being named within a will. The case of Dido Elizabeth Belle (1761-1804) is a very famous, and uncommon, instance of an unmarried daughter inheriting her father’s property. What makes this case all the more peculiar is that Dido was not only unmarried but also illegitimate and of mixed race. It was only through confirmation from her uncle that she was able to inherit her fortune and maintain her freedom.

The Victorian Era (1837–1901)

The Victorians loved a good inheritance scandal, so much so that they were regularly published in all of the popular news media. A notable, and still entertaining, example is Sir Thomas May of London who, in 1887, cut off his wife and daughter with a shilling each. He bequeathed an annual sum of £100 to his faithful servant. These coveted anecdotes were only possible thanks to a peculiarity of English inheritance laws: there is no compulsion to pass anything to children or spouses; a testator is free to dispose of their wealth however they choose, as long as they have made a valid will.

Another instance that was sure to create a publishable story for a satirical newspaper was that of a missing heir. It was common enough that the situation was regulated by law: in case the heir apparent was missing, but not presumed dead, the estate would go to the next in line, with a provision that if the heir turned up within twelve years there would be a rethink. The most famous case of this nature is that of The Tichborne Claimant (1854): Anthony Tichborne, after a very rackety youth, went to South America and, unknown to anyone back home, the boat sank with all on board. When his father died, the next brother was confirmed in the title and estate by the House of Lords. Ten years later, a claimant appeared from Australia. Mysteriously, the slim, elegant, well-educated but badly behaved young Anthony had become a fat, uncouth, uneducated, downright wicked man who earned a living as a butcher. His claim would have been laughed out of court, but Anthony’s mother, who disliked her younger son and worshipped Anthony, insisted that she recognised the claimant as her son. Only after extensive investigations was the claimant proved to be an impostor: Arthur Orton, an East End butcher’s boy who had been a drinking mate of Anthony’s during his wild days in London. Arthur Orton’s claim was denied; Anthony’s brother kept his inheritance; Anthony’s mother was certified as insane and died in an asylum.

In another case, the Earl of Lucan murdered his children’s nanny (having mistaken her for his wife) and escaped abroad. Despite the likelihood of him having jumped overboard from a friend’s yacht, people claimed to have spotted him all over the world for a multitude of years. As a result, his son George Bingham had to wait a long time before being allowed to claim his titles and estate completely.

During the Victorian Era, wills were not commonplace, and having anything at all to leave behind marked the deceased as “a cut above the rest.” In 1850, only around 15% of adults left enough wealth to make inheritance a matter worth caring about (this figure rises to 23% by the mid-1930s). Most people died with nothing or in debt.

Beyond the Victorian Era

By 1911, 90% of estates were worth less than £1,000; only 0.1% of estates were valued at over £50,000. It is now important to consider the concept of wealthfare: this is the way that privilege for the wealthy and affluent is maintained (e.g., trust funds for children). In addition to the pursuit of wealth on an individual level, the state reformed the law and tax system to support those who wanted to keep wealth in the family. The Wills Act of 1837 and the Court of Probate Act of 1857 reformed the inheritance process.

IHT (inheritance tax) brings something different to this “zero sum game”: politicians throughout history have used IHT successfully to promote inter-generational competition and innovation while combating indolence and entitlement. While conferring assets to heirs might seem intuitive, this allows too few families to concentrate property ownership and thus denies the prospect to others. It creates a landed class that ultimately undermines the legitimacy of the very idea of property, that it is a reward for a life of service and contribution. In response to the spectre of inequality, most societies have developed a system for taxing property when it moves between generations. From the stamp duty that a young baron paid to the king when taking over his father’s lands, through Adam Smith, Thomas Jefferson, Andrew Carnegie, Herbert Hoover, Theodore Roosevelt, Winston Churchill, et al., the principle of society taking a proper cut on such bequests has long been established. Churchill, for example, regarded IHT as a ‘corrective against the development of the idle rich’.

Taking a slightly different approach, the Labour politician (now Lord) Roy Jenkins derided IHT as the “voluntary levy paid by those who distrust their heirs more than they dislike the Inland Revenue.” IHT’s ‘voluntary’ nature being a reference to the various schemes devised by specialist tax consultants to avoid it. Ultimately, IHT is perceived by many as unfair: double taxation for the families who have worked hard, saving and building assets all their lives, and optional for those rich enough to protect their largesse. There are many, on both sides of the pond, who vociferously support the view that there should be “no taxation without respiration.” Tacitly, this group includes the British aristocracy, no doubt emboldened by the royal family’s approach: in 2002, the Queen Mother is understood to have left her entire estate, estimated at £50 million, to her daughter Elizabeth II, including works of art, jewels, antiques, and her thoroughbred racehorses. A “deal” made with John Major’s government back in 1993 ensured that The Queen avoided IHT of an estimated £20 million on her mother’s estate.

Andrew Carnegie, the Scottish industrialist/philanthropist and arguably an inspiration to Gordon Brown, advised, “the parent who leaves his son enormous wealth generally deadens the talent and energies of the son and tempts him to lead a less useful and less worthy life than he otherwise would.” IHT, then, is a good thing as it removes the disincentive to contribute to society. Moreover, there is evidence from modern Britain that the expectation of IHT encourages parents to spend money enhancing their children’s educational and social skills to equip them for a perfect storm of headwinds: austerity, globalised competition, environmental crisis, digitalisation, demographic changes, technological advances, etc.

For every proponent of the IHT like Winston Churchill, there’s a Whoopi Goldberg, who complains: “I’d like somebody to get rid of the death tax. That’s what I want. I don’t want to get taxed just because I died. I just don’t think it’s right. If I give something to my kid, I already paid the tax. Why should I have to pay again because I died?”

The history of probate and inheritance law reveals a complex evolution shaped by social, economic, and political factors. From the medieval system of primogeniture to the modern debates over inheritance taxes, the mechanisms by which wealth is transferred have always been contentious and deeply impactful. The laws and customs surrounding inheritance reflect broader societal values, balancing the desire to preserve family wealth with the need to prevent the concentration of property among a privileged few. While tools like trusts, entails, and life estates have been used to manage estates and ensure continuity, the introduction and evolution of inheritance taxes have added a layer of equity, aiming to redistribute wealth and curb the rise of an idle aristocracy. As society continues to evolve, the conversation around inheritance laws will likely persist, reflecting ongoing tensions between individual rights, familial responsibilities, and societal equity.