TheAmerican | In Italia
Published June 30, 2016
In the absence of a will, intestacy laws (who inherits what) and case law are commonly used to help resolve what can often be a tangled web of interests and intentions. That's what happens when someone dies without making their last wishes legally clear.
My first client in Rome died recently and left behind a complex will. She'd started the estate planning process years earlier, determined to ensure her children would be well cared for.
As U.S. and Italian laws changed, so did the will. The changes also reflected choices of a more personal nature. There was property to itemize. Charitable giving required arrangement. She decided to include a trust. There was also the matter of naming an executor. She even set down the reasons behind her decisions.
But creating a document to legally ensure the furthering of one's wishes after death wasn't always simple. For centuries, the right to do so was shaky.
In the early 16th century England's King Henry VIII was not a happy man.
The crown's coffers were drained. In addition to budgetary strains caused by Henry's renowned extravagances, the crown faced a shortfall in "feudal incidents," fees due upon the death of a landholder if the land passed to an heir.
Landholders eager to bypass the payment found a legal loophole by creating a primitive form of trust called a "use." The "use" enabled another person, someone exempt from the fee, to hold legal title to the land (though it was being used by the landholder or his family.)
Thomas Cromwell, a lawyer and Henry's chief minister, mobilized against the "use" practice. In 1535 he rammed the Statute of Uses through Parliament. It outlawed uses and effectively made the legal holders of land liable for the feudal dues. It also reinstated a feudal rule known as "primogeniture." which held that a landholder's firstborn male would be senior-most in the inheritance chain.
The law made it all but impossible for landholders to express personal preferences. Sometimes, in the absence of male heirs, property had to be turned over, or escheated, to the crown.
Landholders increasingly resented Cromwell's fiscal noose. Frustration with Henry had been building since 1529, when he'd started England down the Reformation path that would eventually lead to estrangement from the Roman Catholic Church. Many saw this as a broader threat to all English Christianity.
Cromwell closed monastery after monastery, bringing the properties and their revenues under crown control. Money flowing to the papacy was redirected to royal coffers.
The tension spawned the Pilgrimage of Grace, a rebellion of some 30,000 landowners led by lawyer Robert Aske. They demanded that Henry pull back from his oppressive policies and repeal the Statute of Uses.
Henry was unable to quell the uprising through force. The negotiations that followed were instrumental in the creation and adoption of the 1540 Statute of Wills. The compromise law finally allowed landholders to determine who would inherit their land — so long as their wishes were expressly stated in a will. In the absence of a will, all would revert back to the terms of the Statute of Uses, still in effect.
The Statute of Wills served as a precursor to similar legislation in other common law countries, including the United States.
Yet it's wonder the law even saw the light of day.
Henry wasn't fond of compromises.
He beheaded second wife Anne Boleyn, Thomas Moore, Thomas Cromwell and revolt-leader Robert Aske (and hundreds of his allies).
A will is only one of many documents to consider when putting your affairs in order. But the precious right to legally express one's posthumous wishes was hard-earned, which is worth remembering. As too many celebrities have shown, it's never too early to put those wishes down.