Catalogue description Prerogative Court of Canterbury and Related Probate Jurisdictions: Probate Act Books

Most acts and letters are recorded in summary form, the entries giving the date of the grant, the name and place of residence of the testator, and the name of the executor or administrator with will annexed, and the relationship of the administrator with will annexed to the testator. Probate acts and letters of administration with will annexed limited to a particular part of a testator's estate are entered in full.

Probate act books to 1743 (PROB 8/1-136) are organised by month. Accordingly in order to find an entry for a probate act or administration with will annexed within an act book it is important to know the month in which the act was passed.

The vast majority of the entries in the probate act books take the form of cursory formulaic summaries of the original grants. Except for the period 1651 to 1660 the act books are in Latin until 1733. From 1651 to 1660, and after 25 March 1733, the act books are in English, although certain technical phrases and abbreviations continued to be used in Latin.

If an estate had been subjected to an earlier grant of probate or administration with will annexed this fact is usually recorded both in the body of the entry and in marginal annotations. The entry for the earlier grant was also generally annotated with a marginal reference giving the month and year of the later grant. Accordingly the marginal annotations provide a means of locating different grants that relate to the same estate. Marginal annotations alongside later grants often include references to the original registration of the will. (These references take one of two forms. They may consist of the month and year of registration, or they may consist of a reference to the original system of references for registered wills in PROB 11.) Marginal abbreviations of the terms by decree, by interlocutory decree, and by sentence indicate that the grant of probate or administration with will annexed was issued after litigation in the Prerogative Court of Canterbury.

When a will was proved by the Prerogative Court of Canterbury a copy of the will was made. The copy was attached by a pendent seal to the probate act, and the conjoined documents were returned to the executor. The probate act was the commission in the name of the archbishop of Canterbury authorising the executor to administer and distribute the estate in accordance with the terms of the will. A record of the issue of the probate act was made in the probate act book. The copy wills and probate acts do not ordinarily survive among the records of the Prerogative Court of Canterbury. However if a grant of probate was revoked or an executor later renounced his or her responsibilities then the copy wills and probate acts would be returned to the registry, and may now be found among the exhibit series of the Prerogative Court of Canterbury.

If a testator appointed more than one person as executor, and the different executors were unable to apply for probate and take the oath at the same time, the Court might issue a grant of probate to the first executor reserving power to grant probate to the other executor (or executors). When the other executor sought probate the grant was known as a grant of double probate. If there were three executors a grant of treble probate might be made.

Administration with will annexed:

If a testator left a valid will but the executor appointed in the will refused to act, or was unable to do so, a court with probate jurisdiction could issue letters of administration with will annexed. An executor might be unable to act because he or she had predeceased the testator, because he or she was a minor, or because he or she was incapacitated by lunacy or imbecility. An administrator would be appointed in accordance with the laws of intestacy (except that a residuary legatee might be granted administration in preference to the next of kin), but he or she would be required to distribute the estate in accordance with the terms of the will. The administrator with will annexed would be issued with letters of administration annexed by seal to a copy of the will, and a record of the grant would be made in the probate act book.

Limited acts of probate were issued where the executor was given power to administer and distribute an estate for a limited period, or where the executor was given power to administer and distribute a particular part of the testator's estate only. Grants limited in time were most often made where for instance the executor possessed a copy of the testator's will and was awaiting the arrival of the original attested document from overseas.

The commonest type of probate grants limited to a particular part of the testator's estate were issued to executors of testators who lived and held the greater part of their personal estates outside the province of Canterbury. The executors were granted probate limited to that part of the estate which was held within the province. Such grants of probate become increasingly common in the eighteenth and nineteenth centuries because of the extensive investment by overseas nationals in Bank of England stock. The executors of such wills had to seek probate in the Prerogative Court of Canterbury, limited to the property within the province of Canterbury.

Also common were grants issued to trustees of a married woman's marriage settlement limited to that part of the testator's will where she disposed of property held under the terms of the settlement. Where a testator was himself or herself acting as an executor at the time of his or her death, he or she might appoint by will a third party to complete the distribution of the estate under administration, in which case the third party would be granted probate limited to the estate that the testator was administering as an executor.

Limited grants of probate and limited letters of administration with will annexed granted before 1744 are generally to be found at the front of the section for the month in which they were passed. From 1743 they are entered either in one group at the beginning or end of the different seat sections of the books, or at the beginning of the appropriate monthly sub-sections for the seat in question.

If an executor died or renounced executorship before the estate had been fully distributed the court would issue letters of administration with will annexed de bonis non administratis (of goods not administered). In the case of letters of administration with will annexed de bonis non administratis an entry would be made in the probate act book, and cross references to the latter grant would usually be made in the margin of the probate act book alongside the entry for the original grant of probate, and in the margin of the will register alongside the registration of the will.

If a testator had a complex estate with a multiplicity of rights and interests in property, some of which were perhaps subject to litigation in other courts, there might be a succession of different grants of letters of administration with will annexed de bonis non administratis extending over a period of some years after the will was first proved. In such circumstances an estate might also be subject to a grant of limited letters of administration with will annexed de bonis non administratis. In such grants the administrators with will annexed were granted the right to distribute the estate limited to a specific provision of the will. Frequently such provisions related to property held on trust, which the limited administrator was interested in either as a beneficiary or as a trustee.

Probate grants were issued to executors appointed by will, authorising the executors to administer and distribute the personal estates of the deceased testators in accordance with the terms of the wills.

If an entry in a probate act book says that an executor or administrator with will annexed was sworn by commission this means that he or she was unable to come to the court to take the oath, and it was administered by commissioners near the place of residence of the executor or administrator with will annexed. In such instances proctors acting for the executors or administrators with will annexed sought the grant, and a surrogate of the judge of the Prerogative Court of Canterbury issued a warrant authorising the issue of a commission to swear the executor or administrator with will annexed. The commissions appointing the commissioners, usually ministers of the Church of England, were returned to the court after the oath had been administered.