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Wednesday 17 December 2014
 
 
 

Wills and testaments

What are wills and testaments?

Testament is the collective term used to describe all the documents relating to the executry of a deceased person. Every testament has an inventory of the dead person's property. This may be a brief summary valuation of the goods involved, or it can be a long list of individual items and valuations. In addition, some testaments (the minority) include a will, a statement by the deceased person of how they wished their wordly goods to be disposed of among their family and friends. Where there is a will, the document was known as a 'testament testamentar' (the equivalent of English probate). If there was no will, it was called a 'testament dative' (the equivalent of English letters of administration).
= NAS ref: CC5/6/18 page 74 - the testament of Robert Burns


Did everyone leave a testament?

No. It may sound surprising, but very few Scots left testaments. One of the reasons for this is that Scotland was, until comparatively recent times, a relatively poor country. Even in 1961 only about 43% of Scots dying in that year left testamentary evidence of any sort. You may find for instance that very wealthy people left no testaments while apparently quite humble individuals left wills with full lists of their possessions. People are often surprised to learn that quite valuable family heirlooms can apparently be passed down the centuries without any testamentary evidence. Previous generations were just as averse to paying legal fees as they are today!

What testaments can tell you

For family historians wills can often provide a wealth of detail about family relationships, and about how people lived. You can hope to find names of family members, their relationships and details of everyday possessions. You may also find details of the debts that they owed at the time of their death. It is worth remembering, however, that the eldest son in a family will often not be mentioned, because he inherited the heritable property (land and buildings) of his deceased father.

Understanding testaments

Testaments before the early 20th century are normally handwritten. While Victorian copperplate handwriting is usually simple to read, the handwritings of the 16th, 17th and early 18th centuries can be much more difficult. Testaments are normally in English, or old Scots, and only a very few 16th century examples are in Latin.

Comprehensive guidance to understanding testaments can be found on the ScotlandsPeople website. The Scottish Handwriting website gives help with reading older writing.

You may find the following printed sources useful:
Peter Gouldesborough, 'A Formulary of Old Scots Legal Documents' (Stair Society, Edinburgh, 1985)
Mairi Robinson ed., 'The Concise Scots Dictionary' (Aberdeen University Press, 1985 with later editions)
'Dictionary of the Older Scottish Tongue' (Oxford University Press).
Alison Rosie, 'Scottish Handwriting 1500 - 1700: A self-help pack' (Scottish Records Association and the National Archives of Scotland).

How to find testaments 1514-1925

Testaments for this period have been digitally imaged. Copies of these images are available for purchase on the ScotlandsPeople website. The site contains a full index to these testaments.

These images can be viewed free of charge in the NAS search rooms.

How to find testaments from 1926

From 1926, to search for the will and/or inventory of someone who died in Scotland or someone with Scottish connections who died outwith Scotland, you need to know:
  • the person's name,
  • where they lived, and
  • when they died.

There is an annual printed or typed index of testaments, the Calendar of Confirmations. From 1901 to 1959 it has been digitised and is available on Virtual Volumes. For 1926 to 1959 use the reference format CAL/Year/A (for surnames A to L) or CAL/Year/B (for surnames M to Z). To search for someone with the surname Smith in the year 1935, you would use the reference CAL/1935/B, for example. The Calendar covers all of Scotland and gives details of the deceased, their place and date of death, and details of when and where their testament is recorded. The Mitchell Library, Glasgow, also holds copies of the Calendar of Confirmations volumes up to 1936. From 1960-1985 the Calendar of Confirmations takes the form of microfiche cards. These have also been digitised and are digitally available under the reference SC70/20/Year (for instance SC70/20/1972). From 1985-1996 there is a computer index available in the NAS search rooms.

Orkney and Shetland from 1902

The testamentary papers for Orkney and Shetland have been digitised up to 1901. Plans are in hand to include those for 1902 onwards.

Testaments less than 10 years old

These records are not held in the NAS. Instead you should contact the Commissary Department, Edinburgh Sheriff Court, 27 Chambers Street, Edinburgh, EH1 1LB.

Probates resealed

Before 1858, if a person who normally lived in England, Ireland or Wales died owning moveable property in Scotland, the Commissary Court of Edinburgh was responsible for his or her executry, as it was, indeed, for those in the same situation in other parts of the world. From 1858, the procedure of 'probates resealed' was introduced. By this mechanism, the succession to the moveable Scottish property belonging to individuals normally resident in England, Wales or Ireland could be arranged by the English, Welsh or Irish court simply sending a copy of the local grant of probate or letters of administration to the Edinburgh Commissary Court. Up to 1901 these records are included in the ScotlandsPeople website. From 1925 onwards they can be found in the Calendar of Confirmations.

There were reciprocal arrangements in England, Wales and Ireland for those Scots residents who owned English, Irish or Welsh property.

Can a will be used to transfer land or buildings?

Before 1868, wills could transfer only moveable property (money, clothes, household goods etc), while land and buildings could be inherited either by the separate retour (or services of heirs) procedure or by the mechanism of a trust disposition and settlement (sometimes called a 'deed of settlement').

Between 1868 and 1964 a will could transfer both moveable and heritable property. Consequently if you are interested in the inheritance of land and buildings during that period you may have to consult both testamentary records and retours. From 1964, the bulk of inherited property passed through testaments.

Trust dispositions and settlements

The trust disposition was another form of testamentary deed that allowed an individual to ensure the transfer of landed property to his chosen heirs. In essence, a deed was drawn up transferring ownership of the land concerned to a group of named trustees. Certain powers were reserved to the granter, however, and this in effect meant that he (or she) effectively retained complete power over the property. Such a deed was normally recorded only after the death of the granter and this registration frequently included a settlement of the succession to the granter's moveable property. Collectively,the document was known as a trust disposition and settlement or 'TD&S'. Locating such documents is not always straightforward. They did not require to be registered to be valid and could be registered in a number of places. Most likely, if it were the settlement of a major landowner it would be recorded in the register of deeds of the Court of Session. For most other individuals, such a disposition could be in the register of deeds either of the local sheriff court, the local commissary court (up to 1809) or even the register of deeds maintained by the local royal burgh.

Money left in Chancery (unclaimed estates)

The NAS regularly receives letters from people trying to claim sums of money supposedly left by ancestors who died intestate and whose money has been 'left in Chancery'. These bequests are almost invariably mythical. There is in fact no Scottish Chancery system in the way that there is in England. Where the beneficiary of a will could not be traced, the property concerned had to be reported to an official called the King's (or Queen's) and Lord Treasurer's Remembrancer (nowadays, the Crown Office) as bona vacantia. It would be sold off and the money realised would be held until such time as a claimant appeared.

If an individual died without leaving a will and there was no known heir, the property simply fell to the Crown as ultimus haeres ('the last heir'). The estate would be advertised, and the Treasury might make payments to people with a moral if not a legal claim on the estate. Otherwise the residue was not held indefinitely, but was taken by the state as 'the Crown's share' and the case closed. The NAS eventually gets the records that are created in cases of bona vacantia and Ultimus haeres and these are kept in the series of Exchequer records. The Crown Office, 27 Chambers Street, Edinburgh, EH1 1LB deals with current business of this sort. In practice, few estates falling to the Crown as bona vacantia or ultimus haeres have been of significant value and certainly none match the expectations and myths that have grown up about them.

Soldiers' and airmens' wills

Refer to the guide to soldiers' wills.

Wills held elsewhere in the UK

A good starting point for information on this topic are the research guides on the website of The National Archives (London).


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