If you are searching for a will or testament, you should bear in mind that there was no legal requirement for individuals to make a will. Indeed, comparatively few Scots actually bothered to do this. Even if someone died without making a will, many families still managed to settle the deceased's affairs amongst themselves, without the need to go to court. It is still worthwhile checking the indexes, though, because they can include persons of quite humble origins.
If your ancestor did leave a will, indicating how they wished their affairs to be settled it would include the name(s) of the executor(s) whom they wished to administer their estate. The executor(s) had to be officially confirmed by the court in a document known as a testament. In Scotland, there are two types of testament: the testament testamentar, which applied if the deceased left a will, and usually included a copy of the will, and the testament dative where the court appointed an executor or executors if the person died without leaving a will.
Both types of testament include an inventory of the deceased's moveable property, for example, household furnishings, clothes, jewellery, books, papers, farm stock and crops, tools and machinery, money in cash, bank accounts and investments, as well as money owed to creditors and money due from debtors. Often the inventory consists only of a brief, overall valuation, but sometimes it can be very detailed, with the value of every item listed.
Until 1823, testaments were confirmed in the Commissary Court with jurisdiction over the parish in which the person died. Commissary Court boundaries roughly corresponded to those of the mediaeval dioceses that existed before the Reformation, and bear no relation to county boundaries. The Edinburgh Commissary Court, as the principal court, also had the power to confirm testaments for those who owned moveable property in more than one commissariot and for Scots who died outside Scotland. It is therefore worthwhile checking the Edinburgh records as well as the area in which the person died. Commissary Courts were abolished in 1823 and Sheriff Courts assumed responsibility for confirmation of testaments from 1 January 1824, although the changeover process created a considerable overlap of dates in some courts.
Bear in mind that a will or testament might be recorded much later than you would expect, particularly if there has been any dispute over the contents.
Sources
National Archives of Scotland
, HM General Register House, Edinburgh
- holds the original registers of wills & testaments of both the Commissary and Sheriff Courts, except those of Orkney and Shetland Sheriff Courts, which are held locally. Indexes and images of Scottish Wills & Testaments 1513 - 1901 are available here on ScotlandsPeople. In order to ease the wear and tear caused by repeated photocopying, original wills, testaments and inventories from 1513 to 1901 can no longer be consulted at NAS. Instead, researchers can view digitised images of these records. Post - 1901 original documents are not digitised and can only be consulted at NAS. Visit the National Archives of Scotland website to find out more.
For further information on searching Wills & Testaments, see Record Types & Examples