Rectification Of A Will - Decision Under Succession (Scotland) Act 2016

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...