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Wills/Testaments and Inheritance (Scotland)

Nature of Source

Details of legacies, known as testaments, left by the deceased and proved in a variety of courts. There was no legal requirement to leave a will and few did and in many cases the deceased's estate was settled and could easily be distributed without a testament thus leaving no documents. Essentially a will is a legal document that allows the testator the ability to leave belongings to nominated individuals.

There were two types of will. Firstly, if the deceased died testate (left a will) the process of disposing of the estate was known as Testament testamentar and secondly, if intestate a Testament dative (Admon). In the case of intestacy, the court confirmed an executor to organise the disposal and pay any debts. A Testament dative included very little of genealogical interest except for an inventory of possessions. If a person died intestate or without legal heir, the crown as the ultimus haeres or last heir assumed ownership of the moveables and heritable property and then advertised the assets and sold them off.

A Testament testamentary typically consisted of four clauses
1. an introductory clause
2. an inventory of moveable estate
3. a copy of the deceased's will or 'legacie' or 'latterwill'
4. a confirmation clause (the equivalent of English probate)

A person's possessions were categorised into heritable and moveable property with various legal restrictions that meant that the testator had to abide by certain rules in the distribution of the estate.

Heritable Property
Heritable property, also known as immoveable or 'heritage' property and real estate, included land and buildings. Up to 1868 real estate was automatically inherited by the eldest son (the law of primogeniture) or daughter if there was no son unless there had been a specific disposition or bequest. The law of primogeniture applied to heritage until 1964. This meant that an eldest son might not appear named in the will. Likewise, a wife, who would automatically get the widow's part, may not be mentioned. The right to inherit was established by Retours of Services of Heirs or by a Trust Disposition and Settlement ('deed of settlement'). The actual register of the transfer or other change in ownership was recorded in Sasines.

Moveable Property
Moveable property or personal property included items such as clothes, household and personal goods money, jewellery, investments, bank accounts, tools and machinery, animals, crops and books. Up to 1868 only moveable property could be included in a Scottish will. In a testament these items are referred to as 'goods, gear, sums of money and debts'. Personal property was divided between the widow (widow's part or jus relictae), the children (bairns part or legitim) and the deceased (deid's part). This final third part allowed for the deceased leave a third of his property to any named individual or individuals in a will which had to be confirmed by a court. The moveables were equally divided between the three parts. In the case of the bairns part, all children had an equal share, regardless of primogeniture. When an eldest son inherited the real estate he was barred from receiving the bairns part apart from the best items to furnish his heritable property. In the event of no surviving wife or children or other such combination the moveable property was redistributed amongst the other legitimate parts.

Before the 1560s wills were proved in church courts and form a part of their records. In 1564 Commissary Courts were established and assumed control over will confirmation. There were 22 local Commissary Courts with the Edinburgh Court having jurisdiction over all Scotland, where the deceased had moveable property in more than one commissariot and those dying abroad (including England). Always check Edinburgh and local court records.

From 1823 Sheriff Courts took over from the Commissary Courts although expect to find some overlap during the changeover. From 1868 all individuals could pass on heritable property by a will which signalled the gradual decline of complex measures to pass on real estate such as Services of Heirs.

It is important to note that up to 1600, the new year began on 25 March (Lady Day) and from 1 January 1601, the year began 1 January. Events that took place between 1 January and 25 March pre 1601 are often referred to as old style and new style dates.

Other Scotland Resources
Census Returns
Clan & Tartan Records
County & Local Histories
Court Records
Directories, Trade, Professional, Telephone & Street
Electoral Registers or Burgess Rolls
Emigration Records
Hearth Tax
Heraldic Coats of Arms & Seals
Kirk/Church Sessions
Land Tax Assessments & Returns
Maps & Gazetteers
Militia Lists
Monumental/Memorial Inscriptions
Newspapers, magazines & journals
Old Parish Registers-Baptisms (OPRs)
Old Parish Registers-Burials (OPRs)
Old Parish Registers-Marriages & Proclamations (OPRs)
Palaeography/Handwriting
Passenger Lists
Pedigrees and Family Histories
Poor Law Records
Registers of Deeds (Books of Council and Session)
Retours of Services of Heirs
Sasines, Registers of
Statistical Accounts of Scotland
Statutory Registration-Birth
Statutory Registration-Death
Statutory Registration-Marriage
Surname Origins and Distribution
Valuation Rolls & Stent Rolls

Where Found

ScotlandsPeople Centre (The ScotlandsPeople Centre is the official government resource for family history research. Resources include wills and testaments, 1513 to 1925. Testaments for this period have been digitally imaged. Wills registered between 1925 and 1997 have not been digitised and may only be consulted at the centre. The printed Calendar of Confirmations is the yearly index to these wills. ScotlandsPeople Centre is a partnership between the National Records of Scotland and the Court of the Lord Lyon. The National Records of Scotland was created on 1 April 2011 by the amalgamation of the National Archives of Scotland and General Register Office for Scotland)
HM Commissary Office, Edinburgh Sheriff Court (Testaments less than 10 years old)
Society of Genealogists (Indexes to wills)

Period Covered

1514 - Onwards

Genealogical Value

Name, address, occupation and deathdate of testator; Inventory and value of moveable possessions, but not land held; Name of landlord; Name of 'cautioner'; Names of family members and relationships.

Further References

Will Related
 
Gibson, Jeremy. Probate Jurisdictions: Where to Look for Wills: Federation of Family History Societies, 2002 Buy Now on Amazon
McDonnell, Frances. Register of Testaments Aberdeen, 1715-1800: Genealogical Publishing Company, 2010 Buy Now on Amazon
Torrance, D. Richard. Weights and Measures for the Scottish Family Historian: Association of Scottish Family History Societies, 1996 Buy Now on Amazon
Family History Guides  
Adolph, Anthony. Tracing Your Scottish Family History: Collins, 2008 Buy Now on Amazon
Bigwood, Rosemary: The Scottish Family Tree Detective: Tracing Your Ancestors in Scotland: Manchester University Press, 2007  Buy Now on Amazon
Clarke, T. Tracing Your Scottish Ancestors: The Official Guide: Birlinn, 2012  Buy Now on Amazon
Cory, Kathleen B. Tracing Your Scottish Ancestry: Genealogical Publishing Company, 2009 Buy Now on Amazon
Durie, Bruce. Scottish Genealogy: The History Press, 2012  Buy Now on Amazon
Durie, Bruce. Documents for Genealogy & Local History: The History Press, 2013 Buy Now on Amazon
Hamilton-Edwards, Gerald. In Search of Scottish Ancestry: Phillimore, 1983  Buy Now on Amazon
Holton, Graham & Winch, Jack. Discover Your Scottish Ancestry: Internet and Traditional Resources: Edinburgh University Press, 2009 (Preview available from Google Books)
 Buy Now on Amazon
James, Alwyn. Scottish Roots: From Gravestone to Website: The Step-By-Step Guide to Tracing Your Scottish Ancestors: Luath Press, 2005 Buy Now on Amazon
Maxwell, Ian. Tracing your Scottish Ancestors: A Guide for Family Historians: Pen & Sword, 2009  
Paton, Chris. Researching Scottish Family History: The Family History Partnership, 2010  Buy Now on Amazon
Stewart, Alan. My Ancestor was Scottish: Society of Genealogists, 2012  Buy Now on Amazon
Tovey, Helen. My Scottish Ancestry: Lomond Books, 2011  Buy Now on Amazon
Other  
Concise Scots Dictionary: Edinburgh University Press, 1999 (Preview available from Google Books) Buy Now on Amazon
Lynch, Michael. Oxford Companion to Scottish History: OUP Oxford, 2011 Buy Now on Amazon
Moffat, Alistair & Wilson, James. The Scots: A Genetic Journey: Birlinn, 2011 Buy Now on Amazon
Richards, Eric. The Highland Clearances: Birlinn, 2013 Buy Now on Amazon
Scots Dictionary: Collins, 2014 Buy Now on Amazon
Timperley, Loretta R, (ed). A Directory of Land Ownership in Scotland c 1770: Scottish Record Society, 1976 Buy Now on Amazon
Torrance, Richard D. Scottish Trades, Professions, Vital Documents & Directories: Scottish Association of Family History Societies, 1998 Buy Now on Amazon
Wightman, Andy. The Poor Had No Lawyers: Who Owns Scotland and How They Got it: Birlinn, 2013 Buy Now on Amazon

Websites

 www.nrscotland.gov.uk/research/guides/wills-and-testaments (National Records of Scotland: Research Guides: Wills and Testaments)
www.scotlandspeople.gov.uk/guides/wills-and-testaments (ScotlandsPeople Guide: Wills and testaments)
https://familysearch.org/wiki/en/Scotland_Probate_Records
(Family History Research Wiki: Scotland Probate Records)
https://scotlandspeople.gov.uk/guides/searching-place (ScotlandsPeople Guide: County Guides: Each county page lists the commissary courts and sheriff courts in which wills and testaments for individuals living within a specific county could have been registered)
http://theindepthgenealogist.com/scottish-wills-and-testaments (The In-Depth Genealogist: Scottish Wills and Testaments)
www.scan.org.uk/knowledgebase/topics/willsandtestaments_topic.htm (Knowledge Base guide to wills)

Other Resources
www.scan.org.uk (Knowledge Base - Money & Banking)
http://en.wikipedia.org/wiki/Pound_Scots (Scottish coinage)
www.wakefieldfhs.org.uk/morayweb/Scottish%20Terms.htm (Scottish words and phrases that could be found in deeds, wills other documents)
www.dsl.ac.uk (The Dictionary of the Scots Language: Electronic editions of the Older Scottish Tongue [DOST] and the Scottish National Dictionary [SND])
www.scotsdictionaries.org.uk (Scottish Language Dictionaries: The nation's resource for the Scots language)
www.scots-online.org/dictionary (Translate from Scots to English)
www.scan.org.uk/measures (Scottish Weights and Measures)
www.scottishhandwriting.com (Palaeography tuition)

Online Databases

www.scotlandspeople.gov.uk (The Wills & Testaments Index, 1513-1925: The wills & testaments index contains over 611,000 index entries to Scottish wills and testaments dating from 1513 to 1925. Images of wills and testaments from 1500 to 1925 are available on the site)
www.ancestry.co.uk
(Scotland, National Probate Index [Calendar of Confirmations and Inventories], 1876-1936 This collection includes an index and images to the annually published Calendar of Confirmations and Inventories filed in Scotland for the years 1876–1936. Information on ordering copies of testaments and inventories can be found on the ScotlandsPeople website)
www.thegenealogist.co.uk
(Edinburgh Wills Index 1601-1700)
www.scotlandspeople.gov.uk
(ScotlandsPeople: Soldiers' Wills, 1857-1964: Wills of 31,000 Scottish soldiers made available online by the National Records of Scotland. The vast majority of the Soldiers' Wills are from the First World War with others from WW2, the Boer War, Korean War and other conflicts between 1857 and 1964)

CD Roms

S & N Genealogy Supplies (Edinburgh Wills)