How to look for records of... Civil court cases: disputed wills

2. Which courts dealt with disputed wills?

Cases disputing a will could be brought in a number of different courts and some suits were brought in more than one court. Different courts administered differing legal regimes and could potentially award different remedies. The courts which heard cases concerning disputed wills changed over time.

Before 1858, suits could have been brought in both the ecclesiastical and the secular courts. The major ecclesiastical courts for these purposes were the Prerogative Court of Canterbury and, more rarely, the Prerogative Court of York. The secular court most often concerned with disputes relating to wills was the Chancery Court.

From 1858 all disputes concerning wills were heard, in the first instance, by the new Court of Probate, though cases could still be brought in the Chancery Court.

After 1875 the enactment of the Supreme Court of Judicature Act 1873 created a single unified High Court of Judicature. The Court of Probate and Chancery Court became divisions within this – the Probate, Divorce and Admiralty Division and Chancery Division respectively.

3. Does The National Archives hold the records?

The National Archives will hold the surviving records for a disputed will case if:

• Before 1858, the case was heard by the Prerogative Court of Canterbury.
• Between 1858 and 1873, the case was brought in the Probate Court.
• Before 1873, the case was heard by the (secular) Court of Chancery.
• After 1873, the case was brought in the Probate Divorce and Admiralty or Chancery Divisions of the High Court.
• On appeal, the case was heard by the High Court of Delegates, the Judicial Committee of the Privy Council, or the Court of Appeal. The National Archives also holds calendars of appeals to the Papal Court before 1534.

The following records are NOT held at The National Archives:

• The records of the archdeacons’ courts and diocesan courts which proved many wills before 1857 are typically in local record offices and diocesan record offices.
• The records of the Prerogative Court of York and the Chancery Court of York are at the Borthwick Institute for Archives. The cause papers can be viewed online on the Digital Humanities Institute.
• The records of the Court of Arches – these are held at Lambeth Palace Library. See Cases in the Court of Arches at Lambeth Palace Library 1660-1913, edited by Jane Houston.
• The records of the Judicial Committee of the House of Lords – these are held at the Parliamentary Archives.

4. Searching for disputed wills cases in the records of the Prerogative Court of Canterbury

You should first establish whether a will was indeed disputed in the Prerogative Court of Canterbury. There are five main ways to do this, all using our catalogue:

• For wills proved before 1799, search with the word “sentence” in PROB 11. Over 11,000 wills are so described.
• For wills proved between 1661 and 1858, search the initial complaints (allegations) held in PROB 18 by the full name of the deceased or the surname of the litigants. For example, you will find the catalogue description Purden and Bevan v Nevill, concerning the deceased Sarah Williams of Lambs Conduit Street, St George the Martyr, Middlesex with its full PROB 18 reference if you search PROB 18 with either ‘Purden AND Bevan’ or ‘Sarah Williams’
• Between 1796 and 1903, for estates which were subject to death duty, check if details of a dispute were noted in the relevant death duty register. See our guide to death duties, 1796–1903 for advice on how to do this.
• Check the relevant administration and probate act books held in the following series (click on the series links below to search each series – you will need to search these series by year – and for more advice on their composition):

• • PROB 6
  • PROB 7
  • PROB 8
  • PROB 9

• Search the indexes in PROB 12 for marginal notes saying ‘by decree’ or ‘by sentence’ (sometimes abbreviated). A note of this kind indicates a dispute. For advice on searching PROB 12, see our guide to wills and administrations before 1858.

Once you have identified a dispute then you can look for the records which it generated. How you do this will depend on the time period in question and there is often more than one series of records in which you should look:

• 1661-1858: search by name of the parties or the deceased among the allegations (the initial complaint, by the plaintiffs) in PROB 18
• 1664-1854: search in the answers by the defendants in PROB 25. Search by the name of the respondant in the index of each bound volume before 1785. After 1785 the papers are in bundles, each of which covers a number of years. Within each larger bundle, bundles relating to individual cases are labelled with the names of the parties and the name of the testator. These are not indexed.
• 1657-1809 and 1809-1858: search the depositions – statements of evidence by witnesses – in PROB 24 and PROB 26. Both have indexed volumes and paper indexes at our building in Kew.
• 1641-1722 and 1783-1858: search the early cause papers in PROB 28 by surnames of litigants (for example, Reddish con Bayley); and later cause papers in PROB  37 by surnames of litigants, testator/intestate name, profession or address (an example of a full catalogue description is ‘Smith and others v Smith. Testator or intestate: Smith, James formerly of Scotland Yard, Westminster, Middx.; late of Prospect Cottages, Thornhill Rd., Islington, Middx.; veterinary surgeon and farrier’).
• 1722-1858: search in the exhibits – papers and objects submitted in evidence – in PROB 31, which you can access via the indexes in PROB 33.

Note, the stages through which a cause passed are recorded in the acts of court in PROB 29 and PROB 30. These are concerned with procedure.

5. Searching for cases involving wills in the records of the Court of Chancery, Court of Probate and their successors

Typically, the later a case is, the harder it may be to find surviving records for it.

Up to 1903, if the estate was liable to death duty, then you can check the death duty register for notes of a dispute. For advice on how to do this see our guide to death duties, 1796–1903.

To find cases involving wills in the Court of Chancery, 1558–1875, see our research guide Chancery and Equity Suits, 1558-1875. There are specific search techniques to find disputes about a will or an administration:

• Search for the names of the executors (usually as defendants) in all series between C 1 and C 16.
• Search the catalogue using the terms “the estate of John Smith deceased” AND “pleadings”.
• Search the catalogue using the terms “the estate of John Smith deceased” AND “Chancery”. This will find later documents such as exhibits and accounts.

Many cases from c1750 onwards have only been described in our catalogue as ‘Smith v Jones’, and do not give any indication that a will is in dispute.

After 1875, for wills cases in Chancery Division see our research guide on civil court cases: Chancery Division since 1875. The following series may contain relevant records and can be searched by litigant name or the name of the testator:

• For the period 1858–1960, You may find exhibits relating to cases involving wills in J 90, but this consists of only a small sample of exhibits submitted in cases before the court.
• For the period 1960–1980, you may find cases relating to wills in the Chancery Division action papers in J 83 and J 84. Again, these series contain only a small sample of Chancery Division business. The series include some cases dating back to 1875 as well as a few which concluded as late as 1990.

To limit search results to cases involving wills try using search terms such as “deceased”, “executor/executrix”, “estate” or “will”.

For cases in the Court of Probate, 1858–1875, and Probate Divorce and Admiralty Division, 1875-1960, very few records survive. You may find papers and files relating to contested probate in J 121, but note that this consists of only a 7% sample of cases in that court. Search by litigant name or the name of the testator.

6. Finding appeals relating to disputed wills

There is a complex network of possibilities for appeals in disputed will cases. However, finding an appeal can considerably expedite the research process, since many of the document series generated by appeals bring together all or many of the different documents generated by the legal process in a case – including proceedings in the lower courts. This is particularly true if government law officers became involved in the litigation as there is a good chance that they will have brought the various strands of paperwork together into composite files. There are cases up to the middle of the 20th century for which this applies. To check if this did happen, search by the name of the testator or litigants within Treasury Solicitor files by using an advanced search of our catalogue and department code TS as your reference.

The court to which an appeal was sent was determined by the court in which the case was first heard, as follows: