When is a will not a will...

[Susan]

I come from a long line of hoarders, and when I started researching my family history my mother passed on to me several items she had from her mother, which include some items that came from my great grandmother. One is a will. At least I was always told it was a will, so I grew up thinking it must be a will. But it isn't.

A bit of background.
In the mid 1800s three brothers, John, Bryan and Benjamin, set up a business. Benjamin, the youngest brother died first in 1889 and his entry in the probate calendar states "administration to..." so he did not make a will. The next to die was the eldest brother John in 1893. His probate entry states "probate to..." so he left a will. The middle brother Bryan died in 1895, but there is no entry in the probate calendar. But I have his will.

I decided it was time I reread this will.

Dated 5 February 1895, the handwritten document reads
"I, Bryan.... of.... do hereby make a free gift at my death of my share or interest in...... to my son Alfred..... when any just debts are paid. My share or interest consists of one half of the tools and one half of the good will of the business."
The words free gift are underlined, and his signature was witnessed by two men who both signed.

This 'will' is in an envelope on which was written
Alfred......
From his Father
Bryan.....

Bryan died on 17 March 1895.

Alfred was one of two sons, the only son to follow his father into the business, and he was my great grandmother's second husband.



Was this 'free gift' intended as a way to get round paying probate fees?

 

[Rhian]

While technically a will, as it deals with the disposition of goods after death, it doe not state it is a will, it probably did not have the benefit or cost of a solicitor and could easily have been contested by anyone else. As well as possibly attempting to reduce probate costs and even inheritance taxes it could also been seen as a sensible business agreement, moreso if Alfred was taking over the position in the business. If there had been any objection to the deal then it would have attracted the probate courts attention/

I think your assumption could be correct, a convenient way for business to carry on as normal with minimal unneeded costs.

 

[Pauline]

Was this 'free gift' intended as a way to get round paying probate fees?

Not necessarily, and I am not sure that this document (will or whatever) on its own would have meant probate could be avoided. There is no requirement either for a will to be drawn up by a solicitor, though many people prefer to use one, and if the document has been signed in the presence of witnesses then it would seem to be legally valid. However, since there are no executors named, and the document does not cover all of Bryan's estate, then had probate been applied for, a grant of administration would have been issued.

My guess is that Bryan may have felt he didn't have sufficient property to require a full will, but wanted to ensure that his share of the business was kept separate from the rest of his estate, and not divided between his heirs according to intestacy rules. This would not only make sure that the son who had followed him into the business inherited the whole of Bryan's share, but also protect the business as otherwise Bryan's share might have had to be sold to distribute among all those entitled to inherit.

 

[Susan]

Thank you both for your replies.

I have the report of Bryan's death from the local newspaper followed in the next issue by a letter from his brother John's son to the effect that in his opinion the report was "open to misconception and has already been attended by slight inconvenience to ourselves". The report said that Bryan was the only surviving member of the firm, but the nephew wanted to make it clear that the firm was continuing by the successors. Interestingly, this nephew was a file maker, like his father, in his marriage certificate but by the following census he had left the firm to become a music teacher.

Neither of Benjamin's sons entered the business; presumably John and Bryan took over Benjamin's share after Benjamin's death which is probably why Bryan's 'gift' was of half the tools and good will.

The company was eventually sold to a larger file making business which continued trading for some decades. It is believed that Alfred worked for this larger company until his retirement.