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). |  |
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 youFor 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 oldThese 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' willsRefer to the guide
to soldiers' wills.
Wills held elsewhere in the UKA good
starting point for information on this topic are the research guides on the website
of The National Archives (London).
The National Archives of Scotland
Crown Copyright 2012
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