3. Introduction To Testaments Dative - Vocabulary When thinking about the word 'testament' in this sense, most people imagine a testator, someone who makes a will, naming executors one or more persons to carry out the terms of the will. In Scotland this form of testament was called a testament testamentar. There is no legal requirement for individuals to make wills and the vast majority of people die intestate, that is without making a will. If someone dies intestate, there is no obligation for the successors to go to court and many families sort things out amicably amongst themselves. In such cases no testament is recorded.

Sometimes the successors feel the need to appoint an executor to make the necessary legal and financial arrangements relating to the estate on their behalf. The process by which an executor is appointed by a court, in the absence of a will, results in a document called a testament dative.

In the eighteenth century heritable property (land and buildings) could not be bequeathed in a will: on the death of the owner it passed to the heir (usually the eldest son). Movable property (cash, livestock, furniture, clothing etc) was used to meet any outstanding debts owed by the deceased, and the remainder 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. The dead's part could be bequeathed in a will, but in testaments dative there was no will, so the division was between the widow and the children (and where one or other of these did not survive, there was no division).

Until 1823 the appropriate court was usually a commissary court, whose jurisdiction was based on the diocese of a pre-Reformation bishop. The court levied a fee for confirming the testament: this was called the quot and was usually one-twentieth of the value of the movable property of the deceased which remained after any debts had been paid.

If the value of the movable estate was very small, the court might waive the quot. In the margin of a testamentary register this may be indicated by the words quota nulla or na quot (literally no quote). By the mid-eighteenth century families and creditors used the testamentary process to pursue relatively small amounts of money (such as salary owed to the deceased or a specific debt owed by or to the deceased).

Commissary courts recorded the testaments in registers and the majority of testaments in seventeenth and eighteenth century registers are testaments dative. Most appoint family members as executors and these are called testaments dative qua nearest in kin. If the deceased died in debt a creditor could have himself appointed executor. In such cases, the testament is called a testament dative qua creditor.

Glossary

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