Background

Under the Succession (Scotland) Act 2016, a process was introduced that provided a method of dealing with defects in a person's Will, which are causing difficulties in the administration of the Will. Section 3 of the Act allows for rectification of the Will if the testator (Will-maker) died domiciled in Scotland, the Will was drafted by a third party, and there is sufficient evidence to satisfy the Court that the Will does not reflect the testator’s express instructions.

Previously statutory provisions concerning rectifying contracts did not extend to any "document of a testamentary nature" meaning if a person's Will did not say what they intended, it could not be rectified.

Rectification, in its simplest form, is the means by which a defect in a document, in this case the Will of a deceased person, can be corrected and the document is amended and will continue to take effect as if it was originally in the corrected form.

Recently, what is believed to be the first case under the new provisions of the 2016 Act, was decided.

Key facts

In the case of Alan Craig and another v Athelstaneford Community Association (2018), the testator's original Will, which had been drawn up in 2012 by her solicitor, had left part of the deceased's estate to the Athelstaneford Community Association.  She changed the Will slightly, later that year, but an error was made, and the word 'Association' was mistakenly replaced by the word 'Council'. When a further version was made some years later, in 2016, the error was not spotted and was carried forward. This meant that unless the Will was rectified the Association's share of the estate would fall to the deceased's heirs.

The executors of the Will raised proceedings under the 2016 Act to rectify and correct the error so that the Association could receive its share of what they regarded as having been the intentions of the testator.

Key issues

The Court had to consider whether the testator's instructions had been implemented as she wished. The Court decided that there was ample background evidence provided by the executors to show it was the Association that the testator had wanted to benefit from a bequest. Moreover, in the amended Will of 2016, the deceased had only instructed some small changes and no mention was made of the clause containing the error in the name of the beneficiary.

What does it mean?

In order to establish the deceased’s intentions, it is clear that the Court will wish to consider as much background information as possible, so this needs to be reflected in pleadings.

It does not matter that the error that caused the failure to carry out the deceased’s instructions originated in an earlier Will that had been subsequently overlooked.

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Our experienced team of lawyers can provide advice on a wide range of legal matters, including making or challenging a Will. For advice and information on any of the issues raised here or on any other aspect connected with Wills, Trusts and Executry matters, please contact our expert team either by completing our online enquiry form or telephone us on 01224 581581.