Rectification of a Will - Decision under Succession (Scotland) Act 2016

  • Insight

05 February 2019

If you are considering raising an action to rectify a will this case, outlining the first decision under Section 3 of the Succession (Scotland) Act 2016, will be of interest. This is believed to be the first decision under the new Act. In the case of Alan Craig and another v Athelstaneford Community Association [2018] SC EDIN, the court held that the Will should be rectified, in order to reflect the deceased’s wishes.

The Succession (Scotland) Act 2016, Section 3, provided a process by which the court can rectify a mistake made in a Will. We previously discussed the process in detail in our 2017 article ‘Thy Will be done’.

Significance

The following points can be taken from the decision:

1. The Court may need to rely heavily upon background information in order to ascertain what the deceased’s wishes were. Therefore as much information as possible about the deceased’s interest in or relationship with the intended beneficiary should be included in the pleadings.

2. It does not matter if the failure to follow the deceased’s instructions had its origins in the preparation of an earlier Will.

3. It may be appropriate to call a party who stands to benefit from the rectification as a defender. However, where there is a statable argument against rectification, it may be necessary to call as a defender any heirs on intestacy or fallback beneficiaries who may stand to gain if the Will is not rectified, in order to allow them the opportunity to advance that argument.

Background

The deceased had requested a Will from her solicitor in 2012. She signed this Will on 18 January 2012. In it, she left part of her estate to the Athelstaneford Community Association (ACA).

Later that year, she provided her solicitors with instructions to amend the Will. Her solicitors used the old Will as the basis for the new version, and the deceased signed it on 25 April 2012. However, there was an error in the new Will, and the ACA was mistakenly named ‘Athelstaneford Community Council’. The error was not noticed by the deceased or her solicitor. Later, more changes to her Will were requested in 2016, and she signed a further amended version of the Will on 18 May 2016. The mistake was copied over into the latest version of the Will and again this went unnoticed.

The deceased’s executors raised proceedings under the 2016 Act, asking the court to rectify the Will so that the residue clause read ‘Association’ instead of ‘Council’. There was no fallback provision in the Will for the ACA’s share of the residue, meaning that if the Will was not rectified, the ACA’s share would fall to the deceased’s heirs on intestacy.

The Decision

The Court considered whether it could properly be said that the deceased’s instructions had not been implemented. The deceased had only instructed small amendments to her Will in 2016, and made no mention of the clause in which the mistake was contained. If her wishes had been implemented, then the court would have no power to rectify the Will. Ultimately, the court held that it did not matter that the failure to follow the deceased’s instructions had its origins in the preparation of an earlier Will.

Further, the court held that there was a ‘wealth’ of background information put forward by the executors, which made it clear that the Association was the body which the deceased intended to benefit from her Will.

The Court also considered whether the pursuer’s decision to call only the ACA as a defender, given that it stood to gain from the rectification, was appropriate. However, in the present case, there was no need to intimate the action on those who stood to lose out, i.e. the heirs on intestacy, because there was no statable argument to say that the Court did not have the power to rectify the Will. Further, it was held that it was correct to call the Association as a defender as it would be affected by the rectification, albeit beneficially.

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