Scot­tish in­her­i­tance pro­ce­dures

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Un­like in Eng­land and Wales, con­fir­ma­tion in Scot­land has been a civil court pro­ce­dure since the Ref­or­ma­tion. From 1564, the Com­mis­sary Courts over­saw con­fir­ma­tion, with the county-based Sher­iff Courts tak­ing re­spon­si­bil­ity in the 1820s, where it re­sides to this day. Sur­viv­ing tes­ta­ments from 1513 (in­clud­ing some pre-Ref­or­ma­tion records) are now held at the Na­tional Records of Scot­land in Ed­in­burgh ( nrscot­land.gov.uk), though tes­ta­ments from 2000 re­main at the re­spec­tive Sher­iff Courts.

There are some ma­jor his­toric dif­fer­ences be­tween in­her­i­tance pro­ce­dures north and south of the bor­der. Prior to 1868, Scot­tish her­i­ta­ble prop­erty or her­itage (build­ings and land) could not be be­queathed in a will, a marked dif­fer­ence to the priv­i­lege in­tro­duced into Eng­land and Wales in 1540. In­stead, her­itage had to be in­her­ited through a sep­a­rate process to that of move­able es­tate, with an ap­par­ent heir first hav­ing to prove his or her right to in­herit, ei­ther through the ‘Ser­vices of Heirs’ jury process, or by re­ceipt of a doc­u­ment called a ‘pre­cept of clare con­stat’ from a feu­dal su­pe­rior (other than the Crown). Scot­tish wills prior to 1868, largely con­cerned only with move­able prop­erty (money, pos­ses­sions etc), usu­ally omit any gifts to the el­dest son, who re­ceived the her­itage in­stead.

Up to the early 1800s, the de­ceased’s es­tate was tra­di­tion­ally di­vided into three parts prior to the con­fir­ma­tion process – the bairns’ part (or ‘le­gitim’), di­vided equally among the chil­dren; the widow’s part (‘jus re­lic­tae’); and the deid’s part, be­long­ing to the de­ceased. It is this lat­ter part only that formed the ba­sis of wills, ex­press­ing how the de­ceased wished for his third to be dis­posed of. Mar­ried women could not own prop­erty prior to 1882, as any prop­erty owned be­came the hus­band’s upon mar­riage, al­though many wills were con­firmed for un­mar­ried women and wid­ows.

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