Scottish wills: How to find them | Who Do You Think You Are Magazine

Your ancestor's will is a great resource for proving their date of death and discovering fascinating insights into their life, such as what property they owned and which family members they left it to. In England and Wales, wills before 1858 are available from the Prerogative Courts and post-1858 wills are available as civil probate records. Scotland has its own set of wills which you will need to understand to research Scottish ancestry.

Following an individual’s death in Scotland, the civil courts had a process known as ‘confirmation’, the equivalent of ‘probate’ in England, Wales and Ireland, through which an executor could be appointed to settle any outstanding debts to creditors, to collect outstanding sums owed to the deceased, and to dispose of the person’s movable estate. If the deceased died ‘testate’, meaning that he or she had left a will, then a court document issued to the executor would be known as a ‘testament testamentar’, the equivalent of a ‘grant of probate’ in the rest of the UK. If the deceased died without a will, being ‘intestate’, then the executor was granted a ‘testament dative’, the equivalent of a ‘letter of administration’ or ‘admon’ in other jurisdictions.

Unlike the rest of the UK, the Scottish system for confirming wills has been carried out through the country’s civil courts since the Reformation of 1560, although some older wills confirmed through the Roman Catholic consistorial courts have survived from as early as 1513. After the Reformation these courts were repurposed into ‘commissary courts’, each of which was responsible for a large geographic area known as a ‘commissariot’. Between 1823 and 1830 the system was reformed, with the country’s county-based sheriff courts taking responsibility, which has remained the case ever since.

Prior to the early 1880s, married women could not leave a will, since any property brought to the marriage, or acquired within it, was transferred to the husband through a right known as his ‘jus mariti’, although single women and widows could do so. The majority of wills were therefore left by men, but prior to the executor disposing of an estate according to the terms of such a document, certain relatives had an automatic right to a share. The widow was entitled to a third, known as the ‘widow’s pairt’ or ‘jus relictae’, while the children were automatically entitled to a further third between them, known as the ‘bairns’ pairt of gear’ or the ‘legitim’. If there were no children, the widow received half of the estate; similarly, if their mother had predeceased her husband, the children got a half instead of a third. The remaining part of the estate was then given over to the deceased to decide, via a will, and was thus known as the ‘deid’s pairt’.

As the expression of the ‘deid’s pairt’ a will was therefore used by the deceased to pass on additional legacies to family members or other beneficiaries. The one person often not named within a will, however, was the eldest son, because he was automatically entitled to the deceased’s heritable estate, ie any land and buildings, due to the law of primogeniture. There was a completely separate process for the inheritance of heritable estate, whereby the eldest son, as the ‘apparent heir’, had to have his right to inherit confirmed by his father’s feudal superior. This was either through a court-based system called the Services of Heirs, if a direct vassal of the Crown, or by the issue of a document called a ‘precept of clare constat’, if a vassal of a subject superior (a person who was a vassal of the Crown but who had superiority over lands himself or herself, a sort of ‘middle-man/woman’ position). From 1868, land could be bequeathed in a will, bypassing the primogeniture rule.

Most testament records granted by the Scottish courts are available to consult at the National Records of Scotland in Edinburgh, although those after 2000 will still be held by the sheriff courts. Records from 1513–1925 are available on NRS’s website Scotland’s People, and cost 10 credits per document (£2.50), irrespective of length. They can be searched by forename, surname, year range, court, and a description box, which can be used to search for a title, place, spouse, executor or occupation.

Ancestry also hosts a database called the ‘Scotland, National Probate Index (Calendar of Confirmations and Inventories), 1876–1936’, which provides summaries for all Scottish confirmation-court judgments, going beyond the 1925 cut-off point on Scotland’s People. The source for these, the Calendar of Confirmations and Inventories, was in fact published up to 1959, with the fuller collection available at NRS.