chapter  3
14 Pages

Disputes: The Subject Matter of Testamentary Litigation

In contrast to oral wills, one might assume that written wills presented fewer validity issues. After all, promoters were offering for probate documents that were both signed and witnessed. While the testator's mental capacity and any undue influence might be at issue, both testamentary intent and the terms of the bequest were specified in a document purporting to be a will. Moreover, the modern colonial approach may promote that which the Statutes of Frauds and of Wills sought to discourage: will contests around the edges. Church-court law in the seventeenth century required that a will be signed, sealed, and published by the will-maker in front of two or three witnesses who had also affixed their signature to the will. Holographs were still valid. By limiting the reach of the statute, Parliament defended two cultural norms: informal and deathbed will-making. Similarly, Elizabeth Clerke's will was offered for probate as a valid holograph by her two executrices, Eleanor Clarke and Martha Otghar.