TIP #136 - WILLS IN KENTUCKY I have discussed wills before, but this time I will be looking at the earliest laws of Kentucky as referenced in other posts, 1822. The original laws for the State of Kentucky were based on an act passed on the 24th of February, 1797 which went into force on the first day of March and was based on Virginia laws as shown by 1 Litt. 611. (Chapter CXC) Who may devise in a will and how: The following requirements had to be met. The individual had to be 21 years old or older, be of sound mind, not a married woman. This will explain why, in the oldest wills, there are NO wills for wives! If they met the qualifications above, the individual would devise all the "estate, right, title and interest, in possession, reversion or remainder, which he or she hath, or at the time of his or her death shall have, of, in or to lands, tenements or hereditaments, or annuities or rents, charged upon or issuing out of them…" The last will and testament had to be signed by the testator or testatrix, or by some other person in his or her presence, and by his or her directions; and moreover, if not wholly written by himself or herself, be attested by two or more competent witnesses, subscribing their names in his or her presence. (Section 1.) A widow's dower: This included lands, tenements, rents or annuities, according to the laws. (Section 2.) Devise - how revocable and provisions for the testator's dying leaving his wife ensisent. No devise made or any clause, would be revocable, except by the testator or testatrix's destroying, cancelling or obliterating the original, or causing someone else to do it. Another way was to issue a subsequent will or adding a codicil. But … every last will and testament made when the testator had no living children, wherein any child he might have, is not provided for, or mentioned, if at the time of his death he leave a child, or leave his wife ensient of a child which shall be born (pregnant), shall have no effect during the life of such after born child, and shall be void unless the child die without having been married, or before he or she shall have attained the age of 21. When a testator had a child or children born at the time and making and publishing of his last will and testament, it shall, at his death, leave a child or children, born after the making and publishing of his last will and testament, or shall leave his wife ensient, the child or children so born, or the posthumous child or children, if such child or children shall be unprovided for by settlement, and be neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father's estate as such child or children would have been entitled to if the father had died intestate (without will). (Section 3.) Minors disposing of chattles: Anyone under the age of 18 could not dispose of his chattels by will. (Section 4.) Non-Cupative wills (Spoken death-bed): No such will could be established unless it was made in the time of the last sickness of the deceased, at his habitation, or he had been residing for at least 10 days days prior except where the deceased is taken sick from his home and dies before he returns; nor where the value exceeds ten pounds, unless is witnessed by two people that the deceased had called on to take notice or hear his will. (Section 5.) After six months had elapsed from the speaking of the will, no testimony would be received to prove such a will unless the testimony, or the substance of it, had been committed to writing within six days after making the will. (Section 6.). No will (in writing) or any devise of chattels could be revoked by a subsequent will, codicil or declaration unless it was in writing. (Section 7). Soldiers' wills: A soldier in actual duty, or a mariner or seaman at sea, was allowed to dispose of his chattels. (Section 8) Witnesses: If a person signed as a witness to a will and a bequest had been made to him in the will, the bequest shall be void,. He will be compelled to appear and give testimony on the rest of the will as if he had received no bequest. But, if the witness received anything from the will, so much of his said share shall be saved to him as shall not exceed the value of the legacy bequeathed him. (Section 9.) Power of the County Court: They had the power to hear and determine all causes, matters, suits and controversies that arose within their jurisdiction, they examined and took proof of wills and grant certificates. As an example. If a testator had a "mansion house", or place of residence … or if he didn't and he devised lands, it had to be proved in that county where the lands lie. (Section 10.) Validity of will: If a will was exhibited to be proved, the court had the jurisdiction to receive the proof, to grant a certificate of such probat(e). But, any person interested, had seven years to appear and by filing a bill in chancery, contest the validity of the will. This was tried by a jury and the verdict was final. (Section 11). Residence of witnesses: It was lawful for the court, when presented with a will for probate, if any witness attesting to the will, resided out of the commonwealth, to issue a commission or commissions, annexed to such a will and direct the presiding judge of any court of law or any notary public, mayor, chief magistrate, of any city, town, corporation of county where the witness now lived to take his statement as to the validity of his signature, the individual dying, etc. (Section 12.) Probate: Anyone named as an executor in a will, was to be given a copy of the will after it had been admitted to probate. If there were no executors named in the will, or if the executors refuse to act, the court had the power and authority to hear and determine the right of administration and grant a certificate for obtaining letters of administration with the will annexed, as if the original will had been proved in court. (Section 14.) Evidence: In all trials by jury, the certificate of the oaths of the witnesses at time of first probate were admitted as evidence. (Section 15.) Proving of Non-Cupative wills: Could not be proved within 14 days after the death of the testator, nor until his widow (if he left one) and next of kin had been summoned and given the opportunity to contest the will. (Section 16.) Widow's ability to renounce the will: If the widow was not satisfied with the terms of the will, she had up to one year to renounce the will. She had to come before the court having jurisdiction of the probate. In doing this, she then took her standard 1/3rd interest as provided by law. (Section 24.) Moving property and slaves out of state: If a widow had slaves as dower from her late husband, and moved them voluntarily out of the commonwealth without the consent of the slaves (including their increase i.e. children), the widow forfeited all claim to the slaves. (Section 25.) Husband's removing slaves: Slaves were not allowed to be removed out of the Commonwealth by the husband of a deceased wife without their consent, if so, his holding in the right of his wife's dower affected. (Section 26.) Recording of Original wills: They had to be recorded in the county clerk's office and proved except during any time they were referred to a superior court for examination. Amendments to the above: 26 November 1800 - Slaves are to be considered as real estate and shall pass by the last will and testament of persons possessed of them. 15 December 1800 - Any person 18 years old having a slave or slaves may by his or her last will and testament emancipate said slaves. 18 December 1820 - Any last will and testament containing a devise of land or estate in the Commonwealth, proved in court and admitted to record in the proper court of any state or foreign country where the testator resided - it may be lawful for person or persons interested in the lands and property to be recorded in the clerk's office of the court of appears of the state. The will must be attached or a copy. © Copyright 31 March 1998, Sandra K. 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