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Rectification of a Will - the first successful case in Scotland

11th September 2017

The Succession (Scotland) Act 2016 came into force on 1 November 2016.  Section 3 of the Act allows for rectification of a defectively expressed Will – arguably for the first time in Scotland.  Previously, if a mistake had been made in a Will, the view of a Scottish court was likely to be that it would interpret the Will as signed. The court was not particularly interested in extrinsic “evidence”, which might show that the Will had been wrongly framed – that it did not reflect the true intentions of the granter.

There have been no reported cases as yet in relation to Section 3.  However, this firm was very recently involved in a Section 3 application (possibly the first in Scotland) in which we were able to assist a client in having a Will rectified.

The maker of the Will was a young woman who was suffering from a terminal illness.  She indicated to her friends what her wishes were on her death. One of her friends searched the internet for information on preparation of a Will and drew up a Will for her. The young woman signed the Will – but thereafter doubts arose in the mind of her friend and the young woman as to whether or not the Will had been validly expressed as her date of birth had been omitted.  This is a classic example of how lay persons can misinterpret our laws – Scots Law does not require that the person making the Will should detail his or her date of birth.  Because of that particular doubt, the young woman’s friend drew up a second homemade Will.  However, whilst the first homemade Will would have been entirely valid, the second version was somewhat confused and not capable of ready interpretation.  It could have been argued that the Will was invalid through uncertainty. Morisons Solicitors were approached for advice.

We raised an application under Section 3 of the 2016 Act explaining the circumstances in full (including giving details of the terms of the “first” homemade Will) and leading affidavit evidence from the now deceased young woman’s friend as to her true intentions. The application was skillfully drafted by one of our leading lawyers.  In effect, the purpose of the application was to enable the Court to give effect to the “first” homemade Will which had been sensibly and properly drafted.

The Sheriff, having considered the pleadings in detail granted the application – a justified and just result.

Perhaps the message to be taken from this case is that lay people should not endeavour to create their own Wills. The costs of the application under Section 3 did of course fall to be met by the estate of the deceased. It is fair to say that those costs greatly exceeded what any reputable solicitor would have charged for drawing up a Will and the situation caused great angst to the maker’s family and friends.

As in so many walks of life, the cheapest is not the best.

For more information about the law on rectification of Wills please contact John Kerrigan. For any other inquiries, we have an experienced multi-disciplinary team which provides specialist advice. Please contact our Wills, Trusts & Estates team to talk about your inquiry in more detail and we will be delighted to provide tailored legal advice for you and your family.


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