Confirmations and Testiments - Scottish Estate Distribution

Robert WilbanksConfirmations and Testiments -
Scottish Estate Distribution

by Robert M. Wilbanks IV, B.A.
Chief Genealogist & Historian, C.S.A.

A couple of articles back I discussed Wills and Probates, focusing primarily on their significance, process and procedure in American genealogy. You may wish to review that article before continuing with this article. Here, I will explain about the similar records, legal procedure, and research process in Scottish genealogy.

First of all, Scotland has no ‘probate’ records or courts. That is to say, the term used for the similar legal process is ‘confirmation’, with the primary term being ‘testament’. Testament is both the Will, where one exists, and the process and complete set of records related to the court case. Records found in the Testament include inventory and distribution of the estate of the deceased, such as Will, inventory, administration, guardianships, distribution, etc.

Like American Wills and Probate records, Testaments and Confirmations have the great potential for a wealth of information, including dates of deaths, lists of heirs and/or guardians, relationships, residences, inventories, etc. However, due to varying factors of Scottish history, jurisdictions, courts, etc., knowing where to find these records, if they exist for your ancestor, can be very complicated.

The Court system in Scotland has gone through several transformations, making knowing which court to search for your ancestors’ Testaments and Confirmations very complex. After 1560, the date of the English Reformation, and prior to 1592, the Scottish Reformation, Confirmations of Testaments was in the prerogative of the Episcopal Bishops’ Courts, established by Royal Authority, with the subordinate courts, called commissariat, actually carrying out the ‘probate’ function. Initially there were 15 commissariats, but eventually they were increased to 22. County boundaries were generally not regarded when it came to the Commissariat’s jurisdiction. This practice continued until 1823.

After 1823, through a series of evolutions, Testaments were confirmed by commissariat departments within the Sheriff Courts. The boundaries of these courts were the same as the county boundaries, but not necessarily with the same county name. In 1876, the commissariats were completely absorbed into the Sheriff courts.

Also, be aware that there was no legal requirement or compulsion to have a testament confirmed at all, or in any specific commissariat. If a confirmation took place, it could be at the local jurisdiction, or at the Principal Court in Edinburgh, regardless of where the estate existed.

Another important matter is the distinction between Movable Property and Immovable Property. Before 1868, it was not legally possible to leave ‘immovable’ property, such as land, buildings, titles, etc., to a person by means of a Will or Testament. Only personal, ‘movable’, property could be left by means of a Testament. There are two types of Testaments. If a person died leaving a Testament, with a named executor, the confirmation would be called a ‘testament testamentar’. If a person died without leaving a Testament, and the court had to appoint an executor, then the confirmation is called a ‘testament dative’. Inventories were standardly kept in both of these types of Testaments.

The website can help you determine which commissariat court had jurisdiction over which parishes and counties. Also on this site you can find county guides for all other aspects of genealogy research in Scotland. The site also has free indexes for Scottish testamentary records covering 1513 to 1925. Register to use the website and search the index for free, then pay-per-view for any record found.

Meanwhile, this webpage of the National Records of Scotland is a guide that will help explain more about Scottish Wills and Testaments, including providing a variety of information and links to various indexes, records, courts, jurisdictions, testaments, and more from 1514 to 1999.

While there can be a possibility that your ancestor didn’t leave a Testament, or had little or nothing to leave behind, there is just as easily a strong possibility that a Testament was left, or something was left for your ancestor by someone else. You never know what you could find if you don’t make the effort to search.

This is another of a series of articles in which I show you the basics of searching for your family history, discussing the use of family records, public records, and online resources nationally and internationally, etc. The previous articles are now available on the Genealogy Section of this website.   See “Genealogy” in the menu options at the top of the web page.