A guest post from Ilya A. Kotlyar, a PhD student at Edinburgh Law School. Ilya is researching the ‘Influence of Jus Commune on the Scottish judicial practice of succession to movables in 1560-1660’
On 18 October 1585 (old style), Hector Dowglas (sic) made up his last will, testament and inventory, all given up by his ‘own mouth’ before numerous witnesses and Adam Dickson – the notary public. As was the usual practice of the time, the notary actually wrote down the final testamentary deed only after the defunct’s death, which followed on 30 October of the same year. All those details were mentioned in the deed, containing a Latin notarial subscription, reading: ‘Adam Dickson, notary public, specially invited for everything abovementioned… under my sign and signature’ (CC8/10/3/14).
Just a half-year later, on 21 April 1586, another testator, William Clarksone, also made his last will (CC8/10/3/13). Unlike the previous one, it was ‘gevin up by himself’; however, the text is followed by subscription of testator: ‘William Clarksone, with my hand at the pen led by the notar undirwrittin at my command, becaus I can not wryt’. Then follows the Latin subscription of the notary, confirming all the aforesaid. The handwriting of the deed suggests it was entirely written with notary’s hand.
What is the crucial difference between these two documents?
The will of Hector Dowglas was made in the old fashion, which was exclusive in the preceding decades. It was essentially a nuncupative (oral) will, made before notary and witnesses. The deed, written by notary afterwards, was just an evidence of such nuncupative will. In this, Hector Dowglas’s will is not unlike the notarial wills of Civil law, which the usual way of testing on the Continent.
William Clarksone’s will, however, was made as a written document as a matter of substance. It was made by the way of ‘leading the pen’, where a notary subscribed the will by moving the hand of the testator with the pen in it. ‘Leading the pen’ was a sign that a deed was the product of the testator from the beginning to the end and that a notary was just performing a scribe’s function. The witnesses to such a document were not, in theory, required to know its contents, but only to see the subscription at the testator’s command.
The origins of the ‘leading the pen’ custom are unclear. It was required by 1555 Act (RPS, A1555/6/3) in respect of reversions; it was obviously well established in 1570s. However, it was a latecomer in case of last wills: William Clarksone’s will was one of the first wills made in this way.
In the general context of execution of deeds, ‘leading the pen’ custom subsequently became a standard option for illiterate and disabled in Scotland, to the point that documents similar to Hector Dowglas’s will were deemed invalid. The most explicit case on this issue was Anstruther v. Thomson (1611, M.12499), where two notaries evidenced the confessions of the parties in writing. The Lords of Session refused to recognize this document as probative, pointing out that while two notaries might put their subscription on the party’s behalf, but they couldn’t ‘make a contract’ for him.
However, it seems that in respect of the last wills the practice proved the most conservative and ‘nuncupative’, Hector Dowglas type of wills were still in use long into the 17th century. Thus, in Dundas v. His Father’s Executors (1639, M.2195=M.12501) a ‘certificate’ written by the parish priest, although not subscribed by the testator or in his name, was sustained as a ground for a legacy. In this way, Scots last wills retained some similarity to their Civilian counterparts.