If a person wished to settle his or her affairs before death, they drew up a will, which set down their instructions as to the disposal of their possessions and named the executor whom they wished to administer the estate. The executor had to be confirmed by the court and the document drawn up by the court for this purpose is known as a testament. There are two types of testaments: the testament testamentar and testament dative.
The testament testamentar applied when the deceased died testate (leaving a will). It comprised four parts: the introductory clause, an inventory of the deceased's possessions (see below), the confirmation clause and a copy of the will, stating the wishes of the deceased regarding the disposal of the estate and naming the executor (usually a family member) he or she had chosen to undertake this task. If a copy of the will was not included, reference was made to it having been recorded elsewhere, probably in the court's Registers of Deeds.
The testament dative was drawn up by the court if a person died intestate (without leaving a will), in order to appoint and confirm the executor on their behalf. It comprised three parts: the introductory clause, an inventory of the deceased's possessions, and the confirmation clause. The testament dative might name a family member as executor, but if the deceased died in debt, a creditor might be appointed as executor instead. In such cases, the testament would include a list of the deceased's debts and would exist solely for the purpose of authorising the discharge of those debts.
Under Scots Law, an individual's property was divided into two types:
Heritable property consisted of land, buildings, minerals and mining rights, and passed to the eldest son according to the law of primogeniture.
Moveable property consisted of anything that could be moved e.g. household and personal effects, investments, tools, machinery. It was divided into a maximum of three parts: the widow's part, the bairns part (all children had a right to an equal share) and the dead's part. For more detailed information on inheritance see FAQs on Property & Inheritance
Before the early years of the 19th century, testaments related only to the moveable property of the deceased. However, from the early 19th century onwards, it was not uncommon to find dispositions, settlements, trust dispositions and settlements, etc. recorded in the commissary court registers, and these documents often included details of heritable property. After 1868, the law of primogeniture, where the eldest son inherited everything, still applied to heritable property unless there had been a specific disposition or bequest by the deceased to another party.
The inventory lists the moveable property belonging to the deceased at the time of his or her death. It can include 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 is very detailed, with the value of every item listed. As such, it can supply a snapshot of the deceased's lifestyle and help to build up a picture of what social and economic conditions were like in a particular locality at a particular time. An inventory that contains a 'roup roll' is particularly interesting in that it itemises each lot sold in the auction and states the prices paid (sometimes with the names of the purchasers).
Almost every document in the wills & testaments index contains an inventory of some kind, except where there are separate registers for wills. See the Famous Scots section for the inventories of Rob Roy McGregor, David Livingstone, Adam Smith and many others, or look at The Way People Lived for more examples.
Before 1823, testaments were recorded 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.
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. To find out more about the relationship between the Scottish counties and the courts look at our Courts Map. For further information on the courts themselves, see About The Courts
The Wills & Testaments Index
The newly released records from 1902 to 1925, cover the whole of mainland Scotland and the Western Isles. Plans are in hand to include Orkney and Shetland, whose testamentary records are held locally on behalf of the Keeper of the Records of Scotland. Special arrangements are being made to digitise them in order to complete the new resource.
The wills & testaments index contains over 611,000 index entries to Scottish wills and testaments dating from 1513 to 1925. Each index entry lists the surname, forename, title, occupation and place of residence (where these are given) of the deceased person, the court in which the testament was recorded, with the date. Index entries do not include names of executors, trustees or heirs to the estate. They also do not include the deceased's date of death, or the value of the estate.
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 intestate, there was no obligation for the family to go to court to have the deceased's affairs settled. Many families sorted things out amicably amongst themselves, in which case there will be no testament.
It is always worthwhile checking the indexes, however, because they can include persons from quite humble origins.
Sometimes the intervention of the court to settle the deceased's affairs was not required until many years after the death, possibly due to a dispute, therefore if a will or testament exists, it may be recorded much later than you would expect.
Images of Wills & Testaments
Images of wills and testaments from 1500 to 1925 are available on this site. These images are full colour, authentic facsimiles of the original documents, which are held at the National Records of Scotland, Edinburgh. For reasons of preservation, the original documents have now been withdrawn from public use.
To find out more about what you might expect to see on a wills & testaments image, look at Images
Sample images of wills & testaments from different periods can be viewed by selecting the appropriate period from the left hand menu.