June 2017 – Rectifying A Wayward Will

Author: Mitchells Roberton
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Rectifying contracts and other deeds

Since 1985 there have been statutory provisions in place so that where:

  • a contractual document fails to express accurately the common intention of the parties when the agreement was made; or
  • a document intended, for example, to transfer property fails to express accurately the intention of the person granting the document when it was signed,

it is possible to apply to the court so that the document may be rectified in order to give effect to the intention.

But those statutory provisions specifically exclude any “document of a testamentary nature.” In other words, if a person’s Will did not say what they intended it to say it could not be rectified.

Introduction of rules allowing a Will to be rectified

  • Things have now changed. The Succession (Scotland) Act 2016 has introduced rules so as to allow a Will to be rectified.
  • The court will now have power to rectify a Will prepared by someone other than the “testator” (i.e. the person whose Will it is) where the court is satisfied that the Will failed to give effect to the testator’s instructions.
  • Rectification is confined to situations in which (1) a person other than the testator prepared the Will on the testator’s instructions, and (2) a person applies to the court for rectification of that Will.

The rules in outline

  • Rectification is only competent where the court is satisfied that the Will fails to express accurately what was instructed. So, there must therefore be instructions with which to compare the signed Will.
  • In reaching a decision on whether or not a Will requires to be rectified, the court may take account of other evidence.
  • These provisions would cover: (1) the situation where instructions have been incorrectly transposed by a third party drafter, whether or not the drafter was a solicitor; or (2) Wills made ‘online’ where a third party is taking instructions to produce the Will.
  • In any situation it would need to be clear to the court, based on evidence, that the Will fails to express the testator’s instructions.
  • The intention of the provision is that the power to rectify a Will should be confined to cases where the Will has been prepared by someone other than the testator so that a comparison can be made between (1) the testator’s instructions, supported by relevant evidence on the one hand, and (2) the Will itself.
  • The critical factor in the application of the provision is the involvement of another person.
  • If a testator draws up their own Will – whether on paper or online the scope for rectification would not apply.
  • The court will have to be satisfied that the person applying for rectification has sufficient “interest” in the application.
  • If the application is granted the rectification will, in principle, take effect from the date that the Will was executed.

Protections in case where the un-rectified will has already been implemented

Executors” are those appointed under the Will to take charge of administering the testator’s estate following his or her death.

And “Confirmation” is a legal document from the court giving the Executors authority to uplift any money or other property belonging to a deceased person from the holder (such as the bank), and to administer and distribute it according to law. (In certain cases obtaining “Confirmation” may not be required.)

  • There are protections for Executors from being held personally liable for distributing property in good faith, in accordance with a Will which is subsequently rectified.
  • And, where a beneficiary has sold property conveyed to him or her by the deceased’s Executors under the un-rectified will, subsequent rectification will not prejudice the title of whoever acquired the property for cash (or other consideration) as long as they were  in “good faith”.
  • An application for rectification must be made within 6 months from the date of Confirmation or, if there is no need to get Confirmation from the court, then six months from the date of death.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Bruce Battersby: Bruce@mitchells-roberton.co.uk

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