Wills and testaments

Those written in the 16th and 17th centuries will be difficult to read unless you have had some instruction in palaeography, (that is, the study of old handwriting). The script may appear undecipherable and, as they are written in the Scots language, they contain many words and expressions with which you may be unfamiliar. Most 18th century testaments, however, are relatively easy to read, and those from the 19th century even easier. As with most things, the more practice you get the easier it becomes, so do not be put off if you find things difficult at first.

First read the research guide on the ScotlandsPeople website <https://www.nrscotland.gov.uk/research/guides/wills-and-testaments> [accessed 26 April 2024]. This will give you an understanding of what you can expect to find in the testament itself and be able to look out for the key elements.

The ScotlandsPeople website has a guide to Scottish Handwriting and includes a tutorial on an 18^th century will which takes you through the various elements of a testament dative. <https://www.scotlandspeople.gov.uk/scottish-handwriting> [accessed 26 April 2024].

Your Scottish Archives provides a Glossary of legal terms and Scots words.

Not necessarily. There was no legal requirement for individuals to make a will. Indeed, comparatively few Scots actually bothered to do this. And even if they died intestate (i.e. without having made a will) there was no obligation for their family to go to court to have the deceased’s affairs settled. Many families sorted things out amicably among themselves. Having said this, however, it is certainly worth checking the indexes to the testaments. Even if your ancestor did not leave a will it is still possible that an executor had had to be appointed by the court to administer the estate, in which case there will be some record of his or her possessions. There are sometimes testaments recorded for persons who lived and died in the lowliest situations, whose inventories might include such things as bottomless chairs and haystacks! So do not be put off if you think your ancestor was too humble to appear in the registers.

Yes, you are. A will was the document drawn up by an individual wishing to settle his or her affairs prior to death. As such, it clearly sets down instructions as to the disposal of the deceased’s possessions. It was variously termed ‘Last Will and Testament’, ‘Latter Will and Testament’, ‘Disposition’, ‘Settlement’ and ‘Disposition and Settlement’. A testament, however, was the legal document drawn up after a person died, and its sole purpose was to enable the court to confirm an executor who would be responsible for winding-up the deceased’s affairs. In other words, if there was a will there would definitely be a testament, but there could be a testament without a will.

Briefly, a ‘testament testamentar’, as well as containing the statutory clauses, includes a full copy of the will made by the deceased – if one was drawn up – and confirms executor(s) appointed by him or her in it. If for any reason a copy of the will is not actually included, reference is made to it having been recorded elsewhere, probably in the court’s Registers of Deeds. This sometimes happened after 1804 when statutory changes came about. A ‘testament dative’, on the other hand, was the document drawn up entirely by the court for the sole purpose of appointing and confirming executor(s) to administer the deceased’s estate. It does not include a copy will (because no will was written), and therefore does not indicate how the deceased’s possessions were to be disposed of.

If it is a ‘testament dative’ you will find three distinct parts, that is, the introductory clause followed by the inventory of the deceased’s possessions and thirdly the confirmation clause. In the case of a ‘testament testamentar’ you will find four parts, all of these plus a copy of the deceased’s will, which is inserted between the inventory and the confirmation.

Yes. You will find a ‘testament testamentar’ much more informative. As this includes a copy of the will of the deceased, you will be able to discover exactly how your ancestor wished to dispose of his or her possessions, and who was chosen to wind up the estate. This was usually a member of the family. A ‘testament dative’, on the other hand, does not contain any indication of the wishes of the deceased with regard to the disposal of his or her property since it was not drawn up until after the death. But the person appointed by the court as the executor could well have been the next of kin, so this will supply you with at least one genealogical detail.

Yes, the inventory clause in particular, unless the inventory was drawn up specifically to satisfy the demands of the deceased’s creditors, in which case it will deal only with sums of money. Otherwise, it should contain a list of the deceased’s moveable estate, that is, his or her possessions, or ’goods and geir’. ‘Moveable’ property, as opposed to ‘heritable’ property (i.e. land, buildings, minerals in the ground and mining rights) included household possessions, articles of clothing, livestock, machinery, farming implements, a tradesman’s tools and machinery, etc. From an examination of inventories it is thus possible to build up a picture of what social and economic conditions were like in a particular locality at a particular time. Each inventory supplies, as it were, a snapshot of the deceased’s lifestyle.

The short answer is no, certainly for the pre-19th century period. In Scotland, an individual’s property was divided into two types, ‘heritable’ and ‘moveable’. The former consisted of land, buildings, minerals in the ground and mining rights, while the latter included the rest of his or her possessions, basically anything that could be moved. Testaments were concerned only with moveable property. Having said that, copies of some 19th century wills (alternatively named dispositions, settlements and latter wills and testaments), to be found in sheriff court registers may well include references to the deceased’s heritable property. However, since the rules of inheritance differed in respect of the two types of property (with records relating to the disposal of heritable property to be found elsewhere), you should not expect to find anything here.

Not necessarily. If the deceased owned heritable property, that is, land, buildings, minerals in the ground and mining rights, this would be inherited by his eldest son, in accordance with the Scottish rules of succession. Therefore, unless he was also to receive a legacy under the terms of his father’s will (a copy of which will appear in the testament) do not expect to find any reference to him. Even if the deceased did not own any ‘heritage’, you may not be furnished with the names of all his offspring. This is because his children were, by right, entitled to a third part of his estate if their mother was still alive, or a half if she had pre-deceased her husband, and there was no need to make mention of this share (termed the ‘legitim’) in the testament. The father only had a third or a half part of his estate to dispose of as he pleased under the terms of his will, (termed the ‘dead’s part’) and he may well have decided to include other relatives or friends in this distribution as his children were already catered for. The beneficiaries of the ‘dead’s part’ will be named in the will, however, so if any children were to benefit over and above their ‘legitim’ share you will find them here.

Yes, the 19th century saw changes in the format and character of testaments. Until 1824 testaments were confirmed by commissary courts, but after that date they became the responsibility of the sheriff courts. So inevitably there were some changes. But even before 1824 you may notice some differences. These came about as a result of clauses in the Revenue Acts of 1804 and 1808. Briefly, separate registers of inventories, confirmations and settlements (wills) were kept, and it was possible for an executor to register an inventory with the court without seeking confirmation. And, of course, you should find 19th century testaments much easier to read.

No, it is worth checking the indexes well beyond the date-range you are considering searching. Occasionally, the intervention of the court to settle the deceased’s affairs was not required until many years after the death, possibly as a result of a dispute.

Probably not, unless you think there is a chance that he or she might have held some assets in Scotland, in which case you should definitely undertake this search. The registers of the principal commissary court in Edinburgh will be the ones to try. This court had responsibility in testamentary matters not only for Scots who died ‘furth of the realm’ but also for English people who may never have resided in Scotland but who held Scottish assets, even if it was only money in a Scottish bank account.