Definition
The Wills Act refers to either of two foundational English statutes governing the power to devise property by will. The term requires disambiguation depending on the historical period under discussion.
1. The Wills Act 1540 (32 Hen. VIII, c. 1). The earlier statute, enacted under Henry VIII, was the first significant parliamentary grant of a general power to devise real property. Before 1540, the ability to pass land by testament was severely restricted under the feudal system. The 1540 Act permitted persons holding fee-simple estates in socage tenure to devise the entirety of those lands by will. Holders of estates by knight-service tenure — the more heavily feudal form of landholding — were permitted to devise only two-thirds of such lands, with one-third reserved to satisfy the feudal incidents owed to the lord (chiefly wardship and marriage). Devises to corporate bodies were prohibited under both tenure types.
2. The Wills Act 1837 (7 Wm. IV & 1 Vict., c. 26). The more consequential and enduring statute, passed under William IV and Victoria, consolidated and modernized the law of wills in England. The 1837 Act established formal execution requirements that remain the model for will formalities throughout the common law world: the will must be in writing, signed by the testator (or by another person in the testator's presence and by his direction), and the signature must be made or acknowledged in the presence of two witnesses present at the same time, who must then attest and subscribe the will in the testator's presence. The Act also abolished the old distinction between real and personal property for testamentary purposes and permitted testators to devise all property they were competent to dispose of at the time of death.
When modern legal texts refer to "the Wills Act" without qualification, they nearly always mean the 1837 statute or its direct descendants in Commonwealth jurisdictions. The 1540 Act is primarily relevant to historical research.
Common Confusion
Do not confuse the Wills Act 1837 with the Statute of Frauds 1677, which also imposed writing requirements on certain testamentary transactions involving land. The two statutes addressed overlapping but distinct concerns; the 1677 Act governed contracts and declarations of trust as well as some testamentary matters, while the Wills Act 1837 superseded earlier piecemeal formality rules specifically for wills. Researchers tracing the history of will formalities may encounter references to both. Also distinguish the Wills Act from the Statute of Wills — a term sometimes applied to the 1540 Act itself, and occasionally used in American contexts to describe colonial or early state statutes modeled on the English framework.
Why It Matters in Research
The term "Wills Act" is a persistent source of ambiguity across centuries of legal writing, and researchers must determine which statute a source intends before drawing conclusions.
Historical period matters enormously. Sources before the mid-nineteenth century citing a "Wills Act" almost certainly mean the 1540 statute or its partial amendments. Sources from the Victorian era onward generally mean the 1837 Act. American sources using the phrase may be referring to state statutes modeled on either English ancestor, and those statutes vary substantially in their execution requirements.
The 1837 Act's formality requirements — particularly the two-witness attestation rule — are the direct ancestor of will execution rules in most American states, all Canadian provinces, Australia, and other Commonwealth jurisdictions. When researching will contests based on defective execution, the 1837 Act is the starting point for understanding why courts analyze the specific formalities they do. Many American states have now adopted versions of the Uniform Probate Code, which relaxes strict compliance in favor of harmless-error and substantial-compliance doctrines. This means a researcher using older case law built on strict 1837-derived formality rules may be applying outdated standards in jurisdictions that have modernized.
Researchers working in the Law Mind corpus should note that the encyclopedia entry on Attested Wills addresses the formalities directly traceable to the 1837 Act framework, and is the natural companion to this entry when tracing execution requirements forward into modern doctrine.
The 1540 Act is essential context for any research touching on the history of the devise power, the feudal tenure system, or the transition from real property rules that prohibited testamentary transfer to modern regimes that freely permit it.
Historical Dictionary Support
Both editions of Black's Law Dictionary provide essentially identical treatment of the Wills Act, presenting it as a binary entry covering the 1540 and 1837 statutes in sequence. This is accurate but compressed. Neither edition addresses the 1837 Act's substantive content in any depth — the attestation requirements, the abolition of the real/personal property distinction, or the Act's effect on prior inconsistent wills — leaving researchers dependent on treatise sources for anything beyond identification of the statute.
The framing of the 1540 Act in Black's (both editions) accurately conveys the tenure-based distinction between socage and chivalry holdings, though the practical significance of that distinction had largely dissolved by the time either edition was written. Neither dictionary flags that the feudal incidents which justified the one-third reservation under the 1540 Act (wardship, marriage) had been abolished by the Tenures Abolition Act 1660, making the 1540 Act's internal logic a historical artifact by the mid-seventeenth century.
Historical dictionaries generally do not address the extraordinary downstream influence of the 1837 Act on American law, treating it as an English statute only. This is a significant gap for American researchers who may not realize that the will formality rules they encounter in domestic case law and statute are, in most jurisdictions, direct descendants of the 1837 framework.
Jurisdictional Note
The Wills Act 1837 applies directly in England and Wales and formed the model for will formality rules across the Commonwealth. In the United States, each state has its own wills statute; most historically tracked the 1837 Act's two-witness requirement, but a significant number of states have now adopted Uniform Probate Code provisions that modify strict compliance rules. Researchers should not assume that the 1837 Act's specific requirements apply in any American jurisdiction without checking current state statute.
Encyclopedia Cross-Reference
Attested Wills — Formalities, Witnesses, and the Function of Execution Requirements (The Law Mind Trusts, Estates & Probate Encyclopedia)
Advance Directives — Living Wills and Health Care Proxies (The Law Mind Trusts, Estates & Probate Encyclopedia)