Definition
The Statute of Wills refers primarily to two related English statutes that established the foundational legal framework for testamentary disposition of property:
1. The Statute of Wills 1540 (32 Hen. VIII, c. 1), the principal act, which for the first time permitted landowners to devise real property by will. Before its enactment, freehold land passed by the strict rules of inheritance and could not generally be left by testament. The 1540 statute opened this power to holders of land held in fee simple, subject to certain limitations protecting the Crown's feudal incidents.
2. The Statute of Wills 1542 (34 & 35 Hen. VIII, c. 5), a clarifying act that resolved ambiguities in the 1540 statute and extended its provisions. Black's Law Dictionary, following Wharton, describes this second statute as containing a "statutory exposition" of the former act — meaning it functioned partly as an interpretive gloss on the original legislation.
Together, these statutes mark the beginning of the common law tradition of testamentary freedom over real property. Prior to them, wills operated only on personal property; real property descended by operation of law through primogeniture and the feudal tenure system. The Statute of Wills broke that monopoly and laid the groundwork for the modern law of wills.
The term is also used more loosely in American legal writing to refer to the Statute of Frauds provisions governing wills (notably the Statute of Frauds 1677, 29 Car. II, c. 3, which imposed writing and witness requirements for wills of land), as well as to early colonial and state statutes adopting or adapting English testamentary formalities.
---
Common Confusion
The Statute of Wills (1540) is sometimes conflated with the Statute of Frauds (1677). These are distinct instruments. The Statute of Wills created the right to devise real property by will where none had existed. The Statute of Frauds, enacted over a century later, imposed formal execution requirements — writing, signature, and witnesses — on wills of land and other instruments. A researcher seeing references to "the statute requiring witnesses to a will" is almost certainly reading about the Statute of Frauds or its successors, not the Statute of Wills. Wharton and early American treatise writers sometimes discuss both statutes in close proximity, which compounds the confusion in historical sources.
---
Why It Matters in Research
This term is a historical anchor, not a living statute. Researchers encounter it almost exclusively in three contexts: English legal history, early American colonial law, and foundational treatise writing on the law of wills and estates.
Several navigational cautions apply:
The two Henrician statutes are frequently cited interchangeably in older sources. When a pre-20th century source says "the Statute of Wills," it may mean the 1540 act, the 1542 act, or both in combination. Black's, following Wharton, specifically identifies the second (1542) statute as the one containing the "statutory exposition," which signals that 19th-century legal writers understood the 1542 act as the operative interpretive instrument. If you are tracing a particular doctrinal point, determine which statute the source actually cites before treating the reference as dispositive.
American reception of the Statute of Wills is uneven. Some colonial jurisdictions adopted English testamentary law wholesale; others departed significantly from the outset. Early American statutes governing wills are often called "statutes of wills" generically, which can create the false impression that a state act is a direct continuation of the Henrician legislation. It is not. American statutes of wills are independent enactments that may or may not mirror English formalities.
The corpus will contain references to the Statute of Wills primarily in foundational estates and probate materials, in treatises discussing the history of real property transmission, and in cases interpreting the formalities of will execution by tracing their lineage to the English statutes. Cross-referencing with the Statute of Frauds and early American probate statutes will often be necessary to complete the doctrinal picture.
---
Historical Dictionary Support
Black's Law Dictionary's entry is characteristically brief: it identifies the Statute of Wills as 32 Hen. VIII, c. 1 and notes, on Wharton's authority, that the companion act contains a "statutory exposition" of the original. This framing — treating the 1542 act as an interpretive instrument rather than an independent enactment — was standard in 19th-century legal writing and reflects how English courts and treatise writers understood the relationship between the two statutes.
What historical dictionary sources largely omit is the feudal context that makes the 1540 statute historically significant. The statute arose partly as a compromise following the Statute of Uses (1535), which had extinguished the equitable mechanisms landowners had used to approximate testamentary control over land. The Statute of Wills was, in part, a concession to the landed gentry who resisted the Crown's aggressive use of the Statute of Uses. Historical dictionaries treat the Statute of Wills as a standalone definition rather than as an episode in the longer contest between feudal tenure and testamentary freedom — a context that matters greatly if the researcher is working in English legal history or tracing the philosophical foundations of modern testamentary law.
---
Jurisdictional Note
The Statute of Wills, as an English statute, has no direct force in American jurisdictions. Each state has its own statute governing will execution and testamentary capacity, many of which were modeled on or influenced by English law but are independent enactments. Researchers working in Louisiana should note that testamentary law there reflects civilian rather than common law origins, and references to the Henrician statutes have no doctrinal purchase in that context.
---
Encyclopedia Cross-Reference
The Law Mind Trusts, Estates & Probate Encyclopedia — Attested Wills: Formalities, Witnesses, and the Function of Execution Requirements: For the downstream doctrinal development the Statute of Wills set in motion — specifically, the formal requirements for valid will execution that trace their lineage through English statutory history to modern American practice.
---