Although having always been of interest to historians curious about the oddities of English royal succession, Lady Jane Grey is now having a moment. The critical and commercial success of the highly fictionalized Amazon Prime fantasy television series My Lady Jane has introduced Jane Grey to a wide audience. The series, almost a total reimagining of Jane Grey’s life and story, does derive from an actual succession crisis that took place in London in 1553. And what will surely surprise many modern-day trusts and estates practitioners is that the real-life Lady Jane saga revolved around a will (often called a “devise”), suspicions of undue influence, and perhaps the incompetency of the drafter, who just happened to be the King of England.
Jane Grey, sometimes called the “Nine Days’ Queen,” took power pursuant to a Devise for the Succession created in the year 1553 (the 1553 Devise) that was amended by a dying King Edward VI. John Dudley, the Duke of Northumberland—a man who stood to gain significantly by the naming of Jane Grey as queen—was intimately involved in the drafting of the instrument, and it’s fair to conclude that had he acted similarly in modern times regarding, let’s say, his own parent’s will, he would likely have been called to court to face claims of undue influence and lack of capacity of the drafter. Indeed, the general circumstances surrounding the 1553 Devise will surely sound quite familiar to trust and estate litigators almost 500 years later.
Edward was the son of Henry VIII and Jane Seymour. Before the reign of Henry VIII, the succession of the English Crown was governed by law and was not something that a king could arbitrarily alter during his lifetime or through his will unless Parliament granted him authority to do so. Henry VIII was a particularly strong and forceful ruler, and he was able to manipulate Parliament into reshaping the rules of succession. Through a series of legislative actions, collectively known as the Succession Acts, Henry obtained the authority to designate the English Crown’s succession as he saw fit. The final of these was the Succession Act of 1544, which provided for the Crown to pass to Henry’s son, Edward. To solidify this new order, the Act required all subjects to swear an oath affirming its provisions, cementing the succession both in the law and in the public consciousness. In his will, drawn up in December 1546, Henry reinforced this arrangement, affirming nine-year-old Edward as heir to the Crown.
Edward assumed the English throne at just nine years old. His relatively short reign, from 1547 to 1553, was dominated by powerful regents. As Edward’s health rapidly declined in early 1553 as a result of what most historians now believe was tuberculosis, the issue of succession became increasingly urgent. A fervent Protestant, Edward was determined to prevent his Catholic half-sister Mary from becoming queen. And the evidence suggests that Dudley, in particular, stoked this anti-Mary sentiment and religious animosity.
It should be noted that Dudley was not simply some gadfly hanging about the royal court—he was a knight who had served as a very successful and innovative military leader under Henry VIII and had been extremely close to the royal family for quite some time. As Lord President of the Privy Council, Dudley wielded significant power and influence over the young king. There can be no doubt that Dudley wanted Edward’s successor to be sympathetic to both his personal interests and the Protestant cause.
Dudley helped arrange the strategic marriage of his son, Guildford Dudley, to Lady Jane Grey in May 1553. Jane, a great-granddaughter of Henry VII and a committed Protestant, became a prime candidate for the throne in Dudley’s eyes. Lady Jane was Edward VI’s first cousin once removed. Her mother, Frances Brandon, was the daughter of Henry VIII’s sister, Mary Tudor, making Jane a rather close relative to Edward VI. What’s more, Jane Grey and Edward VI were quite likely friends. Historical evidence, including Jane’s letters to Edward and contemporary accounts, shows they maintained at least an acquaintance, supported by their shared royal connections and interests.
As Edward’s health worsened in the spring of 1553, key amendments were made to the 1553 Devise. Initially, the devise aimed to exclude both Mary and her half-sister Elizabeth (the future queen) in favor of the male heirs of the Grey family. When no male heirs were available and as Edward’s condition worsened rapidly, the devise was altered to name Jane Grey as Edward’s successor. This change occurred in the weeks leading up to Edward’s death and was marked by significant edits to the devise, which strongly suggested Dudley’s influence. Though naming Jane Grey as heir aligned with Edward’s aspirations for England’s religious future, the considerable gains for Dudley resulted in speculation that he had manipulated the frail king, casting a shadow over the succession and ultimately leaving it largely unsupported by the rank-and-file English people, as well as many of the nobles.
In the original draft of the devise, Edward VI sought to bypass his half-sisters by favoring the male heirs of the Grey family. Though by June 1553, as Edward’s health had undeniably significantly worsened, it became clear that Lady Jane Grey was very unlikely to have any children at all before Edward’s anticipated death. This led to a crucial series of edits to the devise, finalized shortly before Edward’s death on July 6, 1553.
The first version of the devise read: “To the L[ady] Fraunceses heires males, for lacke of such issue to the L[ady] Jane and her heires males.” This formulation indicated the long-established preference for male heirs, reflecting Edward’s initial hope for a Protestant male successor. With no male heirs of Lady Jane forthcoming, however, the document was altered to read: “To the L[ady] Jane and her heires males.”
This critical edit, shifting the succession directly to Lady Jane Grey and her male heirs, was made under the considerable influence of Dudley. Edward, weakened by illness and still a teenager, was highly susceptible to Dudley’s influence. If Edward indeed had tuberculosis, he would likely have suffered ever-increasing symptoms of fatigue, fever, chills, and loss of appetite, along with near constant coughing. And Dudley had effectively unfettered access to Edward VI; Dudley’s proximity to Edward during his final days allowed him to shape the succession plans significantly.
The original 1553 Devise still exists today in the Inner Temple Library in London. Experts agree that all of the 1553 Devise was written in Edward’s handwriting. The edits appear awkward as they are scribbled in between lines, accompanied by “strike-throughs” of now-unwanted language. This is an image of the page of the devise with the crucial changes reflected at the top of the page:
As Edward’s death loomed, Dudley worked tirelessly to ensure the revised devise’s legitimacy. On June 21, 1553, he gathered the leading nobles and secured their support of the 1553 Devise as amended. This effort was crucial in his effort to present a united front for Jane’s claim to the throne. In some instances, that support came hard-bargained. Chief Justice of the King’s Bench, Edward Montagu, procured a preemptive pardon from Edward VI as the justice believed that the 1553 Devise was unlawful.
In any event, while he managed to secure the council’s agreement, Dudley’s influence was viewed with suspicion. The rapid alterations to the succession plan ultimately lacked broad support among the English nobility and commoners.
Jane was proclaimed queen on July 10, 1553, but her reign was extremely short-lived. After a few days of indecision, the public and key political figures rallied behind Mary, who truly had a legitimate claim (as she was Henry VIII’s oldest surviving child) as well as considerable popular support. By July 19, 1553, Mary had successfully claimed the throne, and Jane was imprisoned. John Dudley was arrested and executed for treason in August 1553. Mary remained Queen of England until dying, childless, of natural causes in 1558; she was succeeded by Elizabeth, who promptly reversed Mary’s reestablishment of Catholicism as the state religion.
We are writing this article from Delaware, so we will look to Delaware law. “Under Delaware law, all . . . will-contest matters start with the presumption that a testator had the capacity to make a will at the time it was made.” Matter of Langmeier, 466 A.2d 386, 389 (Del. Ch. 1983). It is therefore the party attacking testamentary capacity who bears the burden to establish that the decedent was legally incapable of executing a valid will. Id.; see also In re West, 522 A.2d 1256, 1263 (Del. 1987). The challenger of a testamentary instrument carries the burden of proving that it was the product of undue influence. In re Will of Norton, 672 A.2d 53, 55 (Del. 1996). The Delaware Supreme Court has explained that “the presumption of testamentary capacity does not apply and the burden on claims of undue influence shifts to the proponent where the challenger of the will is able to establish, by clear and convincing evidence, the following elements: (a) the will was executed by ‘a testatrix or testator who was of weakened intellect’; (b) the will was drafted by a person in a confidential relationship with the testatrix; and (c) the drafter received a substantial benefit under the will.” In re Will of Melson, 711 A.2d 783, 788 (Del. 1998) (citation omitted). The elements required to establish undue influence are “(1) a susceptible testator; (2) the opportunity to exert influence; (3) a disposition to do so for an improper purpose; (4) the actual exertion of such influence; and (5) a result demonstrating its effect.” In re Norton, 672 A.2d at 55 (citing In re West, 522 A.2d at 1264). Although sometimes using different wording, the standard to show undue influence on a testamentary disposition is more or less the same in common law jurisdictions. See, e.g., Matter of Kosmo Fam. Tr., 207 A.D.3d 934, 936–37 (N.Y.S. 3d Dep’t 2022). Indeed, Delaware law is expressly derived from the English common law. Del. Const. of 1776 art. 25 (“The common law of England, as well as much of the statute law as have been heretofore adopted in practice in this state, shall remain in force, unless they shall be altered by a future law of the Legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution and the declaration of rights, agreed to by this convention.”). See also Quillen v. State, 110 A.2d 445, 450 (Del. 1955) (“Apart from statute[,] our law is in general the common law of England as it existed in 1776”).
Dudley was not the drafter of the devise or its amendments, so if his acts were viewed by a modern Delaware court, the burden of proof would not flip to him out of the gate. That said, it would appear that Dudley would still have a rather uphill battle in defense. If one looks to the first element of undue influence, it seems likely a court would conclude Edward to have been a susceptible testator as he was both increasingly sick and rather young at 15 years old. (Although Edward would be a legal minor today, he was not wholly regarded as such in his time, in part because he was the sovereign viewed as deriving his authority from God.) As to the second element, Dudley was frequently at the royal court and had access to the king pretty much at will. Element number three asks if Dudley was motivated to arrange for a disposition for an improper purpose. If questioned, Dudley would surely say the purpose was to keep England Protestant. But that could have been achieved through other alternative means, and it is clear that Dudley was motivated to push for the 1553 Devise in order to render his son’s unborn heirs future English monarchs, as well as to further empower himself and his son. The fourth element is the actual exertion of undue influence. Live witness testimony would be helpful here, but the record and circumstances indicate that Dudley did exert that influence. The fifth and final element looks to see if there was a result demonstrating the undue influence. In Dudley’s case, that answer would be in the affirmative as the 1553 Devise read as Dudley wanted it to read and as Jane, albeit briefly, became queen.
There can be little doubt that Edward VI’s failing health and youth made him quite vulnerable to Dudley’s influence. And it’s fair to conclude that, had modern-day law on undue influence been applied, the amendments to the 1553 Devise, at the very least, would have been at real risk of being found invalid. As it was, Dudley suffered far worse consequences; he was convicted of treason after a one-day trial and beheaded shortly thereafter.
