Scottish inheritance procedures

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.