It is often a misconception that a person had the right to bequeath all their estate to whom they liked. However, in certain parts of the British Isles it was not possible to make a will of realty [real property] until the 19th century. In Guernsey, a will of realty could not be made until 1841, in Jersey it wasn’t allowed until 1851 and on the Isle of Man it was illegal until 1864 and Scotland prohibited wills of realty until 1868. Testators in these parts could only make wills that involved personalty, a person’s moveable goods and chattels. One reason for this was that upon a man’s death, his freehold estate automatically passed to his heir, according to the local custom.
The situation in England was somewhat different. Freehold land could be devised by will from 1540 and the joint deed known as the “Last Will and Testament” came into existence as a consequence. Previously, a testament only concerned personalty. In England it was therefore much easier for a father to make provision for younger sons who might otherwise go without where it was the custom for the eldest son to inherit the estate. Copyhold land could not be devised by will before 1815 but as it could be surrendered to the use of a will, the testator could still, in effect, devise it to whomever he or she wished.
