Scottish Government consults on inheritance law shake up

The Scottish Government has launched a consultation into proposed changes to inheritance law in Scotland. The following is the ministerial forward from the Government's Community Safety Minister, Ash Denham:

While the law of succession affects everyone, it can also divide opinion.

It is precisely because it affects everyone that there must be some consensus on what reforms will deliver outcomes that are appropriate for the majority of modern day Scots and in line with their expectations. This is no easy task.

We consulted in 2015 on recommendations made by the Scottish Law Commission in their Report on Succession published in 2009. It was clear from the responses that there was insufficient consensus on a significant number of the recommendations to progress them further.

On testate succession, whilst the current scheme of legal rights attracts criticism, the Scottish Government has concluded from the responses that it does have the benefit of striking a balance between testamentary freedom and limited protections for spouses/civil partners and children and so will not bring forward reforms to the law on testate succession.

This paper focuses on intestacy. The key area which remained unresolved in the 2015 consultation was how an estate should be split where there are both a surviving spouse/civil partner and children. This paper therefore seeks views on a fresh approach to reform of the law of intestacy with reference to regimes which operate elsewhere.

Given that the current rules on intestacy have been in place for over half a century, the approaches explored in this paper may seem novel. Nevertheless I would urge you to consider them and would be grateful for your views. The paper also seeks views on extending an alternative approach to cohabitants to test whether views on what cohabitants' rights on intestacy should be, have shifted.

There are a number of other discrete succession issues in the final chapter on which we would welcome views

I am pleased therefore to publish this consultation paper and I look forward to considering the responses which will inform our policy in this area.

For more on the story visit https://www.holyrood.com/articles/news/scottish-government-consider-reform-inheritance-law.

Details of the consultation are available at https://www.gov.scot/publications/consultation-law-succession/.

Chris

For more information on the historic laws on inheritance in Scotland, consult my book Discover Scottish Land Records - details at https://britishgenes.blogspot.com/p/my-books.html.

Chris

My next Scottish Research Online course starts March 11th 2019 - see www.pharostutors.com/details.php?coursenumber=102. Details of my genealogical research service are available at www.ScotlandsGreatestStory.co.uk. For my Scottish and Irish themed books, visit https://britishgenes.blogspot.com/p/my-books.html. Further news published daily on The GENES Blog Facebook page, and on Twitter @genesblog.

Scottish Services of Heirs indexes on FamilySearch

I occasionally take a look to see what might pop up on the catalogue of the FamilySearch website (https://familysearch.org), and have just found a very useful collection for those seeking ancestors who may have inherited Scottish land and property (heritage) - i.e. the stuff not found on the ScotlandPeople's wills collection, which mainly deals with the inheritance of moveable property prior to 1868. The records in question are the indexes to the Services of Heirs from 1700-1859:

Decennial indexes to the services of heirs in Scotland, commencing January 1, 1700--ending December 31, 1859
https://www.familysearch.org/search/catalog/1004156?availability=Family%20History%20Library

From my book, Researching Scottish Family History, a brief introduction to the records:

The other form of personal estate to be dealt with after death was heritable property. Until 1964, the law of primogeniture meant that the eldest son usually inherited his parents’ land and any properties thereon, though from 1868 this could be bequeathed in a will to other members of the family. In order for an heir to inherit, however, he or she had to have that right legally confirmed through the Services of Heirs process. This basically meant that a prospective heir went before a jury of local landowners to have his or her right confirmed. The jury would deliberate on the matter and then return or ‘retour’ its findings to the Royal Chancery in Edinburgh.

The recorded retours were in Latin until 1847, with the exception of the period 1652 to 1657 (Cromwell’s Commonwealth period). Records for 1530 to 1699 were summarised in the Inquisitionum ad Capellam Regis Retornatarum Abbreviatio, an index for which can be consulted at the NRS (within the General Register House search room). From 1700-1859 you need to consult the Indexes to the Services of Heirs. The retours process in fact continued until 1964, but by then most land was being conveyed through wills, making the process virtually irrelevant.

Once an heir had been confirmed legally, they then had the right to inherit. In truth however, many people put off going through the process for years and took possession of the property in question straight away. It was only when they then wanted to sell the property at a later stage that they would suddenly have a panic about getting the paper work sorted. In other cases, the process took years because of legal challenges to the heir’s right to inherit. As such, the record can often be found years or even decades after you might expect to find it.

That's a simplistic overview of the Services of Heirs records, and considerable more detail can be found on how to use them in my book Discover Scottish Land Records (2nd edition) - here's a brief section about how to search them:

Additional indexes for retours from 1700-1859 are available at the National Records of Scotland and can also be purchased on a CD. These abridgements are written in English, but both Special and General Services are now listed together. There are again two separate lists, however, the main index and the accompanying supplement.

The records are indexed alphabetically in periods of ten years, starting with 1700-1709, 1710-1719 and so on. All heirs are found in the main index, with the following an example:

(1750-1759 decennial index list)

Names of the Person Served  Hunter – Helen – (or Colston)
Distinguishing Particulars  Wife of William Colston in Gifford, to her Uncle Andrew Hunter, Feuar there – Heir General – dated 22d January 1754
Date of Recording  1754 April 16
Monthly No.  16

If you wish to find the name of the heir to a particular ancestor, and that heir has a different surname to the deceased, you will need to consult the Supplement that accompanies each decennial listing, which acts as a finding aid. A typical example would be:

Names of the Persons served to, by Heirs not bearing the same Names
Stevenson – John – Wright, Kilsyth
Names of the Heirs – which see in the Principal Index
Renny – Jean – (or Gillies) – (Heir of Provision General)

Having found the name of the ancestor John Stevenson, I would now need to go back to the original index and look up Jean Renny’s entry for the full index details recorded for her relevant retour.

And that's just the start of it! Discover Scottish Land Records is available from outlets in the UK, Australia, New Zealand, Cananda and the USA - see https://britishgenes.blogspot.com/p/my-books.html for details.

UPDATE: Just for good measure, the earlier records from 1530-1700 (Inquisitionum ad capellam regis retornatarum ... abbreviatio), are available at https://www.familysearch.org/search/catalog/248869?availability=Family%20History%20Library - but best to dust off your Latin skills if you want to use them! (Again, there's further info in my book on how to do so)

Also, just to add - there's currently a sale on for my book in Australia through Gould Genealogy - see https://www.gould.com.au/discover-scottish-land-records/utp0283/. 

Chris

For my genealogy guide books, visit http://britishgenes.blogspot.co.uk/p/my-books.html, whilst details of my research service are at www.ScotlandsGreatestStory.co.uk. Further content is also published daily on The GENES Blog Facebook page at www.facebook.com/BritishGENES.

Coming Soon - Discover Scottish Land Records (2nd ed)

Coming soon from Unlock the Past (www.unlockthepast.com.au):

Discover Scottish Land Records (2nd edition)

This updated guide from family historian Chris Paton takes a look at the complicated records concerning land and property research in Scotland. For centuries property transactions within the country were governed by feudal tenure, a system which was abandoned in England and Wales in the Middle Ages but wich continued in Scotland until 2004. But feudalism was not the only method by which land was held, with Udal law, duthchas, leasehold and more competing as forms of tenure across the country at different times.

Connected with the rules surrounding property transactions were those associated with the inheritance of land and heritable estate, all of which are explained in great detail. From sasines to skat, from retours to precepts of clare constat, and from apparent heirs to heirs apparent, this concise guide will help you to get to grips with one of the most exciting and useful topics within Scottish family history.

Chris

My next 5 week Scottish Research Online course commences Sept 11th 2017 - details at https://www.pharostutors.com/details.php?coursenumber=102.
For details on my Scottish & Irish genealogy guide books, please visit http://britishgenes.blogspot.co.uk/p/my-books.html.
For my genealogy research service, please visit http://www.ScotlandsGreatestStory.co.uk.

DNA evidence resolves baronetcy inheritance claim in Scotland

DNA evidence has overturned an inheritance claim in a ruling that could have profound implications for similar cases within the aristocratic and landed classes in Britain, and perhaps beyond.

An accountant from High Wycombe called Murray Pringle and a businessman from Hastings, Simon Pringle, had both claimed the right to inherit the baronetcy of Pringle of Stichill, near Kelso in the Scottish Borders. The original baronetcy had been granted by the Crown to Robert Pringle of Stichill and all "male heirs from his body" in January 1683. When the 10th baronet died in 2013, the two claimants, who are second cousins once removed, asserted their right to inherit.

Murray Pringle's case was based on the allegation that Simon Pringle's grandfather, Norman Pringle, the 9th Baronet, was not a son of the 8th baronet of the same name - whereas the 9th baronet's brother Ronald, father to Murray Pringle, was a legitimate son. Seven judges at the Judicial Committee of the Privy Council in London, asked to intervene by the British Queen (see my previous post at http://britishgenes.blogspot.co.uk/2015/10/dna-tests-may-upset-blue-blooded.html), had ruled that DNA testing was perfectly legitimate as a means to resolve the dispute. The test results have now confirmed that Simon Pringle is not a male line descendant of the 8th baronet, and thus has no claim as a 'male heir of his body' to inherit; the same tests have shown that Murray Pringle is the legitimate heir, as his DNA confirms his descent.

For the full story, visit http://www.bbc.co.uk/news/uk-scotland-south-scotland-36576672 and http://www.telegraph.co.uk/news/2016/06/20/accountant-wins-legal-claim-to-baronetcy-in-unusual-cuckoo-in-th/.

The full judgment itself is available at https://www.jcpc.uk/cases/jcpc-2015-0079.html.

Chris

For details on my genealogy guide books, including A Decade of Irish Centenaries: Researching Ireland 1912-1923, Discover Scottish Church Records (2nd edition), Discover Irish Land Records and Down and Out in Scotland: Researching Ancestral Crisis, please visit http://britishgenes.blogspot.co.uk/p/my-books.html.

The last heir - ultimus haeres records and retours

Another repost from other wee blog, this time from a case study I uploaded in August of last year concerning some fascinating documents known as ultimus haeres records. Enjoy!

I recently had an interesting case to look at where a client contacted me to try to trace the relationship between a John Menzies and James Alexander Playfair MacLaren, with Menzies having been appointed as MacLaren's heir some two years after his death in 1910. The client had already obtained some solicitor's records and some sasines (land transfer records) outlining to a degree what had happened to the deceased's estate, but without the relevant genealogical information. There were mentions of family trees having been drawn up to prove the claim - could I essentially find the other side of the conversation, and work out the relationships by locating the mentioned tree charts?

The deceased was a gentleman called James Alexander Playfair MacLaren, who had passed away in November 1910. He died without any immediate lawful issue, and no claimants were immediately forthcoming as prospective heirs. In Scotland, if no claimants step forward in such circumstances, after a suitable period the estate goes to the Crown as Ultimus Haeres, which is Latin for the 'last heir' (see www.qltr.gov.uk/content/ultimus-haeres). The papers that my client held seemed to indicate that this was what had happened to James' estate, and so the first step was to first confirm that it had indeed fallen to the Crown. To do this I ordered up the Ultimus Haeres lists for the year in question, and confirmed it to be the case (they are catalogued under E869).

Next up, I then called up the Treasury Report in which the case would have been mentioned. In some cases genealogical evidence can be found included alongside these reports, and it was hoped that the family tree chart might have been included here - sadly this avenue turned out to be something of a damp squib in this case, however, simply noting that James' unclaimed estate had fallen to the Crown on 14 FEB 1911, with his lands due to be sold off in 9 lots. After any debts incurred by the deceased were paid off, the rest was to go to the office of the King's and Lord Treasurer's Remembrancer in Edinburgh, or KALTR (today it would be to the Queen's and Lord Treasurer's Remembrancer).

My next avenue now was to consult what are known as the Procedure Books, catalogued under E851. These provide a summary of developments concerning the administration of the Ultimus Haeres process, but also any subsequent claims made on the Crown by prospective heirs late to respond to the initial advertisements made by the KALTR for claimants to step forward. In this case I was now fortunate to get a 5 page summary of written conversations held between the agents of John Menzies and the KALTR's office. This slowly began to reveal some genealogical information. For starters, it noted that James MacLaren was the eldest lawful son of the late James MacLaren, draper of Coupar Angus, who was brother german of John MacLaren of Beechhill, a solicitor ('brother german' means a full brother), and that James junior had died at Auchterarder on 3 NOV 1910. In September 1911 the first mention of the name Menzies appeared, with a Jessie Menzies claiming to be the descendant of the deceased's grandfather's sister, though no names were provided. An exchange of letters requiring proof followed, and in February 1912 a solicitor was noted as claiming that John Menzies was MacLaren's rightful heir.

The thing is... the KALTR office was deeply unconvinced. There was a question mark over whether the relevant documents to support the claim had been found as proof, with particular concerns over a marriage document that seemed to imply that MacLaren's grandfather was aged 13 and a half when he married.

This was useful stuff, but what I really needed was the written conversation from the KALTR, not a summary, and as such, I next called up the letter books for the period from 1910 to 1913, which are catalogued under E854. The first thing to note about these books was the appalling quality of the letters, which had been kept as carbon paper copies. A few were so faded they were close to being illegible, but I photographed them all and was able to enhance some of them when I got home. These not only revealed the genealogical problem causing the KALTR office grief, but also the workaround that led to Menzies being confirmed as heir.

It transpired that the issue causing problems was the fact that Alexander McLaren (Laren or McLaurin), the grandfather, was said to have been baptised in February 1787, but that he had an older brother born in December 1785. This meant that the earliest that Alexander could have been born was September 1786 (assuming his mum fell pregnant again within a couple of weeks, which was optimistic!). This therefore put a question mark over whether Alexander was truly 14 when he married Elizabeth Cochrane in October 1800 - the age of 14 being the minimum legal age for marriage at that point for males. The minimum age for girls to marry back then was 12, but this was far from the KALTR's concern - the bride in this case was supposed to have been aged 24! John Menzies was said to be the grandson of Alexander's sister Jean MacLaren, and again there were problems confirming that she was related to Alexander. In short, the KALTR was having none of it, and was of the mind to reject the application of John and Janet Menzies to make a claim on the MacLaren estate that had fallen to the Crown, noting the relationship to be "unsatisfactorily established" in July 1912.

And that's when it got really interesting! Clearly frustrated with the KALTR's objections to the claim, the solicitor on behalf of John Menzies went down a separate tack - to have John formally recognised as an heir via the Services of Heirs procedure, and to have Janet Menzies appointed as an executrix dative for the moveable estate. Janet was first recognised as such in January 1913, and a month later John's application to be served heir went before the court. The Services of Heirs process was the Scottish jury based process by which anyone making a claim on heritable estate had to be first recognised as the lawful heir. There were two types of 'service' that could be applied, the easiest simply being a 'general service', the process pursued by Menzies' agents, where a jury simply looked at the evidence put before them and said yes or no as to whether the claimant was who he or she said they were (the other was a 'special service' where any land in question was also brought into the proceedings). Against the KALTR's objections, the Sheriff Court in Perth took a look at the family trees and other evidence placed before it and contented itself that John Menzies had the right to be recognised as MacLaren's heir-at-law. A last check in the indexes to the Services of Heirs from 1913 confirmed that John Menzies was duly served as heir as "second cousin" to James Alexander Playfair MacLaren. It seems that this move by Menzies' solicitor to have him recognised by a court as a lawful heir was enough to force the KALTR to release the assets held by the Crown which had been surrendered to it as Ultimus Haeres, to John Menzies, despite its overwhelming objections.

Although there were many references to family trees and genealogical documents being bandied about between the relevant parties, no tree was found in the papers that have survived from the case - but the detail in the records at least provided the information that allowed Menzies to satisfy his claim as understood and believed by a court of law. Unfortunately the Sheriff Court papers from the period have not survived, nor the solicitors' papers, and so this cannot be pursued further. The question remains as to who was right. Did the KALTR office have a legitimate problem with the evidence it was asked to consider - or did the Jury listening to the services case get it wrong?!

An interesting case!

For more on Scottish land records and inheritance, my book Discover Scottish Land Records is available from Unlock the Past at www.gould.com.au/Discover-Scottish-Land-Records-p/utp0283.htm - both print and ebook versions are available.

(With thanks to my client for permission to share the story)

Chris

For details on my range of genealogy guide books please visit http://britishgenes.blogspot.co.uk/p/my-books.html. To commission me for genealogical research, please visit my research site at www.scotlandsgreateststory.co.uk.

Ultimus haeres records in Scotland

On my other wee blog is a new post looking at a series of records concerning Ultimus Haeres cases, where unclaimed estate after a person's death in Scotland fell to the Crown as the 'ultimus haeres' or 'last heir'. The post is available at http://walkingineternity.blogspot.co.uk/2014/08/the-last-heir-ultimus-haeres-records.html.

Chris

Now available for UK research is the new second edition of the best selling Tracing Your Family History on the Internet: A Guide for Family Historians, whilst my new book British and Irish Newspapers is also now out. And please consider purchasing the great new version of Caledonia by The Libations at 79p via www.caledonia2014.com - all profits go to help fund Scottish foodbanks

All hail the conquering heir...!

It's been a while since I posted on my other blog, Walking in Eternity, so I thought I'd share a bit more on the complexities surrounding Scottish land inheritance, and the vast differences between it and English land inheritance.

Visit http://walkingineternity.blogspot.co.uk/2013/05/all-hail-conquering-heir.html to learn about the differences between the inheritance of heritage and conquest! :)

Chris

My new book, Tracing Your Irish Family History on the Internet, is now available from Pen and Sword. My next Pharos Scottish course, Scotland 1750-1850: Beyond the Old Parish Registers, starts May 15th - see http://britishgenes.blogspot.co.uk/2013/04/scotland-1750-1850-beyond-oprs-starts.html. Time to smash a few brick walls...!

Retours of Services of Heirs 1544-1699

This is not a new development, just one that I appear to have picked up on very late!

I've just noticed that the three volumes of the Inquisitionum ad Capellam Domini Regis Retirnatarum Abbreviatio 1544-1699 are all available on Google Books, having been digitised in mid-2010. For those with an allergy to Latin, these are the abridgements to the Retours of Services of Heirs for that period.

In Scotland, when a person died, there was no automatic right to inherit property or land (heritable estate). The right to inherit this was said to be "in hereditate jacente" of the deceased owner, and before being officially recognised as an heir any incumbent was known as an "apparent heir" (not to be confused with the English phrase "heir apparent"). To formally inherit, he or she had to jump through a few hoops to be legally recognised as the heir. If the land in question was held feudally of the Crown, the process involved popping along to a local jury called the Services of Heirs, where they would confirm that you were who you said you were, and then send notice to the Scottish Chancery about it, via a 'retour' - at which point, voila, it was yours. (Not all inheritance was dealt with like this - if the land was held of a subject superior, rather than of the Crown, all you needed was a document called a 'precept of clare constat').

There were two types of retours - Special Services (or special retours) and General Services (general retours). The Special Services tended to deal with estates, and the abridgements provide a lot of detail on the properties being conveyed, as well as notes on the parties involved, date and value (extent) of the land; whilst the General Services were much more basically indexed. The records for the Special Services are grouped chronologically in order by county, whilst those for the General Services are all lumped together in one big national chronology. The abridgements are not quite complete, with a volume missing from 1611-1614, for example, with others also missing sporadically throughout. (Bear in mind also that some services are also to be found in sheriff, burgh and regality courts, and were never retoured to the Chancery).

The abridgements in the volumes deal with both sets of retours up to 1699. Unfortunately most of them are in Latin (with an exception around the Commonwealth period in the mid-17th century), but they are indexed by name (index nominum) and by place (index locorum). Special Services are abridged in Volume 1 (Aberdeen to Orkney and Shetland) and Volume 2 (Peebles to Wigton), whilst the General Services are abridged in Volume 2. The indexes are in Volume 3 for both types of services. There are also a few other minor sets of records to do with appointments of tutors to those inheriting in their minority, or those not sound of mind.

The records are on Google Books via the following links:

Volume 1
http://books.google.co.uk/books?id=UCVDAAAAcAAJ&dq=editions:-Ly064yuh7YC&source=gbs_navlinks_s

Volume 2
http://books.google.co.uk/books?id=PiVDAAAAcAAJ&dq=editions:-Ly064yuh7YC&source=gbs_navlinks_s

Volume 3
http://books.google.co.uk/books?id=Ch1DAAAAcAAJ&dq=editions:-Ly064yuh7YC&source=gbs_navlinks_s


There are additional indexes for retours from 1700-1859 available on a separate CD from the Scottish Genealogy Society (www.scotsgenealogy.com) - these are much more basic, and in English. The original documents for all are available at the National Records of Scotland (www.nrscotland.gov.uk). There is also a CD available for the records from 1544-1699, which I've been using, but obviously having them freely available online and fully keyword searchable is a bit more advantageous! Incidentally, the indexes continued beyond 1859 up to the mid 20th century, but after 1868 land could be bequeathed in a will in Scotland.

There's a bit more on all of this at www.familysearch.org/learn/wiki/en/Service_of_Heirs_or_Retours and on my Walking in Eternity blog at http://walkingineternity.blogspot.co.uk/2012/02/land-inheritance-in-scotland.html

Chris

British GENES on Facebook at www.facebook.com/BritishGENES and Twitter @chrismpaton

Scotland's Greatest Story research service www.ScotlandsGreatestStory.co.uk and www.facebook.com/ScottishGenealogyResearch