Probate documents | English Ancestors

Only four days remain before the deadline of the Ministry of Justice consultation paper regarding proposals to destroy all post-1858 original Wills and related documents, with the exception of those of famous people, and to retain only digital files of the rest. The full consultation paper may be viewed here.

You can respond directly at the following address or by email: civil_justice_poli@justice.gov.uk

Will Storage consultation
Ministry of Justice
Civil Justice and Law Division,
Postpoint 5.25
102 Petty France
London
SW1H 9AJ

The deadline for replies is this coming Friday, 23 February.

Below, is my own response in full, which was emailed this morning.

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Response to the Ministry of Justice Open consultation paper: Storage and retention of original will documents, Published 15 December 2023

Question 3: Are there any reasons why the High Court should store original paper Will documents on a permanent basis, as opposed to just retaining a digitised copy of that material?

Yes. As a professional genealogist/ researcher working with documents in archives as well as online digitised copies of certain documents, I object strongly to proposals set down in the above consultation paper to destroy the majority of Wills and related documents after a prescribed period, replacing them with digital images of the same. My reasons are below.

Question 5: Do you agree that there is equivalence between paper and digital copies of wills so that the ECA 2000 can be used?

No. In archival terms paper wills and digital copies are not equivalent. Only the original is ‘the original’. A digital copy of that, no matter how perfect, is a stand-in: a ‘surrogate’. Even the citation appropriate for these types of documents is different: if a researcher is in the presence of the original document, the citation will be to that document and its location; if using a ‘digital copy’ of that, the citation requires extra information: what, precisely was viewed, via what website or other source, and when was it accessed? There is a reason for this: only the original can be guaranteed to include every mark and every page.

Digital preservation is not infallible. Despite the ‘huge advances that technology has made over recent years’ (Point 27) it does not follow that ‘digital copies of original documents can be extremely detailed and all relevant marks on the original will be retained in the digital version.’ JPEGs are ‘lossy’ files. Lossy compression compresses an image, making it smaller (and more economical) to store, but the trade-off is a permanent loss of detail. As a researcher who regularly downloads images from archives and commercial genealogy websites I know that those images are much-reduced JPEGs. Consequently, there are times when only the original will do, for example when comparing signatures with other documents to confirm this is the same person; or if a stain on the original document renders text illegible in digital format: in a good light, the eyes may be able to decipher the original.

Digital files can also corrupt, resulting in permanent loss of all contents. In any case, the technology available to us now may be surpassed in the not too distant future.

There is also the issue of human error. During the photographing process, it is possible to turn over two pages at once, to leave off useful information on the rear of a document, or even to omit an entire document. All researchers using online digital images will have experience of this. On occasion, too, documents may be incorrectly indexed, making the correct digital files very difficult to find. In 2023 entries on the GRO Births and Deaths registers were made available for direct download – a development greeted with delight by the genealogy world; and yet some of the digital photographs of the entries are not usable, owing to having been photographed at an angle, thereby cutting off essential information. The point with all these difficulties is that the original documents remain intact: they have not been destroyed. The digitisation is a great thing, but we need the originals too.

Question 4: Do you agree that after a certain time original paper documents (from 1858 onwards) may be destroyed (other than for famous individuals)?

No. History is not just about ‘famous people’. Concepts have changed. History is also about the many millions of others who were impacted by decisions of the powerful. Their Wills are important too.

Question 6: Are there any other matters directly related to the retention of digital or paper wills that are not covered by the proposed exercise of the powers in the ECA 2000 that you consider are necessary?

It is clear from the wording of the consultation paper that a rather narrow understanding of the enduring value of Wills and Probate documents is at play. Point 27 asserts that ‘All parties and courts will […] be equally able to rely on digital copies of wills to challenge the validity of that will or another as they would be if relying on the paper will.’ Undoubtedly that is true; and in this regard legal issues such as time limits for contesting a Will are relevant, and the comparison with time limits for retention of other Court documents (Point 45) is valid.

However, once Probate is granted, the Will and associated documents become public documents. As such, the original purpose of the Will and Probate documents is not its enduring value. It is not appropriate to restrict considerations to the immediate legal purposes and to the emotional attachment of the testator’s nearest and dearest. The wider value of a Will may become apparent many years into the future. Genealogists use them to learn about the immediate and wider family of the individual, their lifestyle and social standing. Historians and social scientists may take a much broader approach, for example examining Wills made by individuals in a particular location, or a particular ‘type’ of person, using their findings to draw conclusions about, and better understand that location, or our society more generally in the past.

Question 9: Do you agree with the principle that wills of famous people should be preserved in the original paper form for historic interest?

I agree of course that wills of famous people should be preserved, but not that this should be the exception to the rule of mass destruction.

The suggestion (Point 51) that this already happens for pre-1858 Wills is misleading and untrue. Before 1858, Probate was a matter for the ecclesiastical courts, and these valuable historic documents are stored in diocesan archives, with some original and copy Wills of the Prerogative Court of Canterbury held at The National Archives. While it is true that Prerogative Court of Canterbury: Wills of Selected Famous Persons have been separated out and stored in record series PROB 1, the implication that only these Wills have been kept is false. Not a single Will was destroyed; Wills of individuals not deemed ‘Famous Persons’ are archived within a different part of the collection.

Question 10: Do you have any initial suggestions on the criteria which should be adopted for identifying famous/historic figures whose original paper will document should be preserved permanently?

The mere posing of this question illustrates the problem: there is a value judgement linked to this. Since your values may be different to mine, who will decide? Might society’s assessment change over time? A suffragist in the nineteenth century might be considered a tiresome person, yet that same person today may be considered a trailblazer, playing an important part in the road to universal suffrage. What a travesty if it turned out this person’s Will was destroyed because they were not sufficiently ‘famous’, or their fame did not accord with contemporary values.

Janice Heppenstall

Diagram showing the networks provided by the Wills of three men in a small village in Wharfedale between 1693/94 and 1712/13, plus the Probate Register entry of another man. The network seen through these documents includes a total of 36 people.

The ‘All About That Place’ event, as well as a short course I was doing at the same time: Progressing Your Local History Research (346) through Pharos Tutors, inspired me to start a couple of ‘One Place Studies’, and to register them with the Society for One Place Studies.

One of my studies, Starbotton in Wharfedale, focuses on the Early Modern period – roughly 1500-1750, although depending on the records available, it may end up homing in on just part of that period. Starbotton is part of the parish of Kettlewell and importantly, no parish registers for the period before 1698/ 1700 have survived. Although there are some Bishop’s Transcripts for the seventeenth century, survival of these records too is limited and patchy. This means I have no continuous register of any kind to use as a foundation for rebuilding the community of people in Starbotton before the last fifty years of my period of interest. The primary challenge will be to locate as many alternative sources as possible and then find ways to make them work together.

Prior to the Local History course my research in Starbotton had focused on my Simondson family. I already had Wills for three of the Simondson men who died between 1693/4 and 1712/13, plus the Probate register entry only for another, John, who died in 1705 and named Anthony as his executor. Christopher’s was a holographic Will, meaning a group of trusted family and friends gathered at his deathbed, helped him to organise his thoughts, and wrote up the document after his death, all of them signing to verify that the contents were the wishes of the deceased. The Wills of Lister and Christopher are accompanied by Inventories, which are also signed by everyone involved in that process.

Something I had previously noticed – both here and in another small village where I’ve accessed quite a few Wills – was the sense of community evoked through all the people involved in the Probate process – witnesses, executors, the men doing the inventory, bondsmen and so on – and that’s in addition to the named beneficiaries. They all pulled together to help each other at this time of need, and to ensure the wives and children were properly cared for.

With this in mind I decided to ‘map’ the network created by the three Simondson Wills, plus John’s Probate Register entry. Every fact, and every single person shown on the network chart at the top of this post came from a close reading of these Probate documents. I do have some additional information about some of the people, gained from other records. For example, it is Thomas Simondson who is my direct ancestor, and I have more information about him and his family, but his Will does not seem to have survived. I was surprised to find that, excluding beneficiaries, there were twenty people involved in this network-mapping process: nineteen men and one woman. Adding in the named beneficiaries brings the total to thirty-seven: eleven women/ girls and six men/ boys are named beneficiaries. This younger generation will make my job a bit easier since most of them undergo some religious rite or other that brings them into the period of the surviving parish registers.

Homing in on householders though – which in itself would be a great step forward – these Wills have given me a LOT of information about the village community. I do recognise most of the surnames and in some cases the first names too. Comparison with a transcript of the 1672 Lady Day Hearth Tax return, and also with a list of churchwardens from all available Bishop’s Transcripts indicates that most are from the parish. However, the parish includes Kettlewell as well as Starbotton, so there is still work to do in trying to separate out the two.

A person’s ‘community’ is not necessarily restricted to his or her village. In addition to the village community there will be wider networks too, based on friendships, marriages, worship (e.g. Nonconformists in rural locations would have a geographically wider network), business, market days, and so on. Based just on my Simondson family, I know that they had family connections throughout Wharfedale and into what is now Lancashire too. This also seems to me to be part of the history of a Place: where were the wider networks and connections? What were the reasons for this? And was it different for people from different social levels?

I’ve now located about ten more Wills for the same period for other testators living in Starbotton and will gradually collect and transcribe these, looking for overlaps, and comparing the findings to other records known to be for residents of Starbotton.