Supported will-making before the Wills Act 1837
In late May 1833, four years before Queen Victoria came to the throne of the United Kingdom and shortly afterwards gave Royal Assent to the Wills Act 1837, Starkey Jennings, a man who had been paralysed by a stroke and partially lost his power of speech, made a will. It is an unusual will because he was given considerable help to make it, when his paralysis would otherwise have prevented him from doing so at all. It is also a more vivid and indelible account of his life history and wishes than anything else which survives from the sixty-four years that he had lived until then.
The will that was made for him, and which was admitted to probate in the ecclesiastical courts at York as a valid will, survives in the Borthwick Institute for Archives of the University of York, and was published via the Institute’s social media to mark the beginning of UK Disability History Month on 18 November 2020.
Starkey Jennings was a painter. Beyond that description of his occupation it is impossible to tell whether he was a house- and sign-painter or whether he had more artistic aspirations or training, or whether he combined house and sign-painting with local portraiture or other painting for anyone who would commission him. He was born in Halifax and baptised there in March 1769. By the time he reached the age of twenty-two in 1791 he was settled in the village of Haworth, and on 1 November that year he married Rebecca Sutcliffe, of the same parish. He and Rebecca had eight children between 1791 and 1812, six daughters and two sons. Both of their sons died in their early twenties, and four of their six daughters died in infancy. After his wife Rebecca died in 1817, Starkey remarried in 1819, a widow called Hannah Brigg, who only lived for a year after their marriage. After her death, Starkey married again, for a third and last time, to Mary Feather, another widow of Haworth, on 20 February 1821. By 1833 his two surviving daughters were themselves married — his older daughter Mally (also known as Mary in some records) to Robert Wright, a wool-comber, of Haworth and his younger daughter Mariah to Thomas Buckle, also a wool-comber, of Bradford. The Wright family appeared to have lived with Starkey and his wife in Haworth before his death.
Three men who knew Starkey Jennings: Robert Murgatroyd, Nathan Wright and John Winterbotham, devised a way for him to give instructions for his will, even though he could not fully articulate his wishes, by using drawings and a set of questions to which he could answer “yes” or “no”, or mark an x with a pen. On the sheet of instructions they drew pictures of his two surviving children: his older daughter, Mally Wright, in a blue dress, and his younger daughter Maria Buckle, in a red dress. They also drew simple pictures of Starkey Jennings’s properties in Haworth. These consisted of houses known as Bell Isle or Belisle, which was the family home, John Sugden’s Dwelling, six Old Israels Cottages, and five Cottages at bottom of the Ginnel. Land tax records for 1832, the year before his stroke, show an annual rentals figure for “Bellisle Houses” of £3 5s (£3.25), and for “Ginnel Houses” of £5 10s (£5.50).
The text of the sheet of instructions reflects the questions put to Starkey Jennings and the answers he gave to them. It is impossible to know whether he had ever discussed his wishes with any of the three men present before he had suffered his stroke.
What part of the dwelling houses drawn out and named below do you intend to give to Mally Wright your Older Daughter and her Children
Mark them with your pen
What part of the dwelling houses drawn out and named below do you intend to give to Maria Buckle your younger daughter and her children. Mark them with your pen.
Do you give to Maria Buckle and to her Children the place called Bell Isle and John Sugden’s dwelling
In answer. I do. I do.
Do you give your Money Furniture Clothes to be divided in equal shares to your two Daughters. The Answer. It shall be so.
Do you give to Mally Wright your Older Daughter and to her children Old Israel’s Cottages and the Cottages at the Ginnel bottom all of them
He answers I will
Do you mean your Daughters to draw the Rents of the houses during their lives and then the respective shares to go their surviving Children their Heirs Executors Administrators and Assigns in equal portions.
He answers. It shall be so.
The sheet of instructions also contained a list of names of men from whom Starkey Jennings could choose his executors, by marking the names with an X, as he did for John Greenwood of Bridge House, a property close to Bell Isle, and John Hartley, a grocer, of Haworth.
From this page of instructions Robert Murgatroyd, Nathan Wright and John Winterbotham drew up a will for Starkey Jennings and witnessed him putting his X to the document. As a painter, Starkey may have found the drawings on the sheet of instructions a highly recognisable and reassuring form of communication, indeed the images of Mally and Maria may even have been copied from paintings he had done himself. None of the three men who drew up the will benefited under it, and no-one appears to have ever questioned their integrity in helping Starkey Jennings to put his wishes into effect. A local directory records a Robert Murgatroyd as a miller in Haworth in 1834 and a Nathan Wright as a blacksmith. The directory also lists a Rev John Winterbottom (sic) which appears to be a misspelling for Winterbotham. The Rev Winterbotham was the Baptist minister in Haworth. The Jennings family were obviously adherents of the Church of England. Would this have made it unlikely that Starkey Jennings would have chosen to involve the Reverend Winterbotham in making his will? Relations were very strained between the established Church and dissenters for political reasons in the early 1830s, and in 1834, the Reverend Winterbotham was the source of vigorous correspondence in the local newspapers in which he picked vituperative personal quarrels with local ministers of the Church of England. But there is no other obvious candidate for the John Winterbotham who assisted with the drafting of the will.
The will was made on 25 May 1833. It opened with a statement that
I am of sound understanding but my speech has been taken away by a stroke of paralysis. I can read and give answers to any question by affirmation or negation but cannot articulate many words together. I wished much to make a disposal of my property by Will for the peace and good of my relatives and am very glad a plan has been devised to enable me to do it. I perfectly know the intent of the signs and questions on the other side of this sheet respecting my Daughters and my property.
It isn’t difficult to imagine the emotion of the occasion and the strength of Starkey Jennings’s desire to put his wishes into effect. The law of intestacy in 1833 was complex and archaic. If he had died without a will his properties would have gone to his “heir at law”, who would have been a distant relative, as he had no surviving son, and the rest of his estate would have been divided between his wife and children in fixed shares.
The will then continued with a gift to Mally for life of all the rent and income from Old Israels Cottages and the cottages at the bottom of the Ginnel, and after her death the properties were to be divided between her children “whether legitimate or illegitimate” in equal shares. If Mally died leaving children unable to maintain themselves then the property income was to be used for their support “whether their necessity shall be caused by sickness or tender age or any other avoidable reason”. There was a similar gift to Maria and any children she might have of Bell Isle and the property known as John Sugden’s dwelling. If she had no children surviving her then these properties would go to Mally’s children instead. The will also directed that Starkey Jennings’s furniture, books and clothing should be given to his daughters in equal shares “excepting one bed and one Bible which I give to my Wife which she brought when we came together”, although there is no specific record of this proviso in the instructions.
At the date of Starkey Jennings’s will, there was no married women’s property legislation and in effect the property income that he gave to his daughters would have been household income which their husbands could have used for themselves. It is noteworthy that he provided for his daughters and for their children on a basis of equality between male and female and legitimate and illegitimate children, and ensured that none of the capital of his property interests would be inherited by either of his sons-in-law. Their income as wool-combers must have been vulnerable to obsolescence and to economic recession, and the property income is likely to have made a significant difference to both households. However, it is slightly curious that Starkey Jennings gave Bell Isle to Maria rather than to Mally, who was actually living there with her family and continued to do so.
There was a reason why Starkey included his daughter Mally’s children whether legitimate or illegitimate. As the family tree shows, Mally had an illegitimate son, James Starkey Jennings, whose existence had clearly never been a secret and who had grown up in his grandfather’s home. He was baptised on Christmas Day 1816, when he was eight weeks old, and the baptism register names his mother as “Mary”, and describes her as a spinster, living at Belisle. He was born only about six months after the death of Mally’s older brother, James Starkey Jennings, a young man of twenty-four who had only married the previous year, and the choice of the baby’s name was no doubt intended to perpetuate his memory. Mally also later had children with her husband, Robert Wright, and survived him. All that is known of her son James Starkey Jennings is that he lived with his mother and grandfather, and later with his mother and step-father and their children at Bell Isle, remaining there after Starkey Jennings’s death until shortly before his marriage in 1844. He too was a wool comber. On 19 October 1843 he was the victim of a crime, which appears to have taken place at Bell Isle, as his mother and step-father and young step-brother William Greenwood Wright were named as witnesses. A labourer from Wakefield called Bryan O’Hara stole James’s silver watch and chain and was sentenced to three months’ imprisonment with hard labour.
Why did Starkey not provide more generously for his widow, Mary, in his will? He left her nothing except for the “one bed and one Bible” which had been hers in the first place. Mary had income in her own right, in the form of an annuity which the sons of her late husband John Feather had agreed to pay her in lieu of dower, an archaic form of life interest for a widow in her husband’s estate. Presumably this is why Starkey Jennings felt no obligation to be more generous to her in his will. Nor does she appear to have been involved in drawing up the will. It is impossible to know now whether this is because she would have objected to the almost complete exclusion of herself from it, or because she could not have been of any practical assistance. As she had signed the marriage register with her mark, she was probably largely illiterate, as, by the same token, were both of Starkey’s other wives and his two daughters.
Two days after making this will, on 27 May 1833, Starkey Jennings died. He may have well known he was on his deathbed when he marked the document with his ‘x’ and seal. He was buried a few days later, on 31 May 1833, in the parish church of St Michael’s and All Angels, Haworth, by the perpetual curate of the parish, Patrick Bronte, better known to posterity as the widowed father of novelists Charlotte, Emily and Anne Bronte, then in their mid-teens. The memorial inscription on Starkey Jennings’s grave is also a memorial to his first wife Rebecca and the six children who predeceased him, and to his grandson, William Greenwood Wright, who died at the age of 13 in 1844.
It is tantalising to wonder what, if any, degree of acquaintance the families had during the decade or so in which the Brontes had been in Haworth before Starkey Jennings’s death, but there is no record of anything other than the Jennings family baptisms, marriages and deaths during Patrick Bronte’s time as perpetual curate of Haworth which commenced in 1820. During his first decade of residence there the population had increased by a quarter from about 4,500 inhabitants, and far from being the isolated village that some of the Brontes’ early biographers imagined it to be, it was an industrial township, active with textile mills and other trades mostly associated with wool. Wool-combing, the occupation of both of Starkey Jennings’s sons-in-law was more a cottage than a factory industry. Haworth was not a healthy place, as the high mortality of children and young adults in Starkey Jennings’s own family alone reflects.
Starkey Jennings’s will pre-dates the Wills Act 1837, which remains the modern foundation of the law of formal validity of wills, and has recently been temporarily amended to enable wills to be validly made and witnessed whilst complying with social distancing or self-isolation during the coronavirus pandemic. On 19 April 1833, only a few weeks before Starkey Jennings’s death, the government had printed the fourth report of its Commissioners Appointed to Inquire into the Law of England Respecting Real Property. Their first report had already described the law of wills as “very incongruous and defective”, and their fourth report contained recommendations which were given effect to in the Wills Act 1837. In 1833, when Starkey Jennings made his will, wills containing a gift of land were still subject to the Statute of Frauds 1677, which required “writing … signed by the party so devising [giving] the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the devisor by three or four credible witnesses”. The manuscript of the will shows that these formalities were complied with by the three men who helped Starkey Jennings to overcome his paralysis and give effect to his last wishes
But in some ways, Starkey Jennings’s will was ahead of its time. Section 9 of the Wills Act 1837 preserves some of the language of the old Statute of Frauds and requires a will to be in writing and signed by the person making it “or by some other person in his presence and by his direction”. These words do not encompass anything as elaborate as the steps undertaken to make a will for Starkey Jennings, nor does the common law of testamentary capacity require such steps to be taken. By contrast, one of the principles of the Mental Capacity Act 2005, which came into force on 1 October 2007, is that a person “is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success” — section 1(3). Through the men who assisted him, Starkey Jennings asserted absolute confidence in his capacity to make a will (“I am of sound understanding”), but it is both obvious and part of the record of the way in which the instructions for the will were drawn up that the task involved some assessment of his capacity, as the stroke had limited his power of both speech and writing. The drawings and manuscript record of instructions are a striking example of practicable steps being taken to help someone to make a decision, well over a century before this wording was expressed in any English statutory language.
As regards the future, in its 2017 consultation on wide-ranging reforms to the law of wills, the Law Commission discussed the possibility of introducing a statutory scheme of “supported will-making” to help people who have mental capacity to make a will but who need support in order to do so, having regard to the requirement of article 12(3) of the UN Disability Convention for states to take “appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. In that discussion the Law Commission described examples given to them of exercises quite similar to that in Starkey Jennings’s case in order to help a disabled person make a will. It remains to be seen whether any more formal arrangements for a scheme of supported will-making will ever come into force in English law, and if so with what safeguards to protect people making wills from coercion or fraud on the part of those supporting them.
In the meantime, Starkey Jennings’s 1833 will remains a fascinating historical document and one which illustrates in every sense of the word how effectively supported will-making can be done.
With thanks to Sally-Anne Shearn of Borthwick Institute for Archives for a PDF copy of the entire will and subsequent probate endorsement on it, and to Jackie Fox for local history research
 The baptism records only give his father’s name and not his mother’s. No occupation is given for his father, John Jennings, but a baptism entry from the same church for another child a few years later describes a John Jennings, Painter. It is likely that Starkey Jennings’s mother’s surname was “Starkey” and the name may have had some local standing, as this was a well-established convention in naming sons in the 18th and 19th centuries. The majority of extant records show the name spelt “Starkey”, but the will uses the form “Starkie”.
 There is a Belle Isle Road in Haworth which is presumably where Starkey Jennings’s home and adjacent properties were. It is at the bottom of the hill of which the Parsonage, church and churchyard stand at the top.
Background information about the Brontes and Haworth in the early 1830s from The Brontes by Juliet Barker, Wiedenfeld and Nicolson 1994
Genealogical information from Ancestry.co.uk and facsimile parish and other records