Succession: Putting it right: scope of the s 3 remedy

A client will receive her full legacy from the estate of her late partner of 20 years, following a successful application for rectification of his will under s 3 of the Succession (Scotland) Act 2016.

Sheriff Deutsch at Ayr Sheriff Court ordered that the will be rectified in what is understood to be the first defended action of its kind.

Section 3 of the 2016 Act was introduced to allow a person to seek to correct the terms of a will if the court can be satisfied that it fails to reflect accurately the instructions given to a third party drafter, usually their solicitor. That power was previously thought reserved for cases of incidental or typographical error. This action, however, concerned a more substantive mistake.

Misinterpretation of instructions

The testator had a previous will made in 2016, which directed his pensions be left to his partner and the residue of the estate be divided equally between his partner and his two sons.

In 2018, following the purchase of a new property, the testator instructed his solicitor to update his 2016 will to include a liferent in his partner’s favour. The testator received a first draft of the updated will. The draft included the liferent but removed the specific bequest of his pensions to his partner. In that draft, the residue of his estate mirrored the terms of the 2016 will and was to be divided equally between his partner and two sons.

The testator replied to his solicitor by email confirming that the draft will was in order with the exception of the removal of the specific bequests of his pension policies in favour of his partner. He had not instructed that change. He instructed his solicitor to include his pensions in favour of his partner. His solicitor accepted his instruction.

The testator received a second draft from his solicitor which now included a clause leaving his pensions to his partner. On seeing the change he instructed, the testator advised his solicitor that the draft was in order. The testator signed his will in those terms around six months later.

However, within the second draft and unbeknown to the testator, a further change had been made by the solicitor. The testator’s partner was removed as a residuary beneficiary. The residue of the testator’s estate was now to be split between his two sons, only. No written record was ever recovered from or produced by the testator’s solicitor instructing that change. The change was not highlighted in the second draft.

The testator died from COVID-19 complications in 2020.

Legal case for rectification

Following the testator’s death, his partner recognised the inconsistency between the terms of the will and the testator’s instructions to his solicitor. Her concerns having been denied, she instructed that court proceedings be raised to correct the will so that she would receive a one-third share from the residue of the deceased’s estate in accordance with her partner’s instructions. The testator’s sons opposed the application.

After hearing evidence from five witnesses and closing arguments, the sheriff determined that there was ample persuasive evidence that the deceased did not either expressly or impliedly instruct the change to remove his partner as a residuary beneficiary.

No evidence was recovered from or produced by the drafting solicitors capable of justifying the removal of the testator’s partner as a residuary beneficiary. It was established that the circumstances and manner in which instructions were given to the drafting solicitors led to the inescapable conclusion that the change was not instructed by the testator.

The sheriff considered it idle to speculate the cause of the error, but the practices of the solicitors that emerged under cross-examination were such as to increase the risk of mistakes in giving effect to instructions from their clients.

This was an interesting case, given there are no reported cases on s 3 of the Succession (Scotland) Act 2016 being used to address a substantive error or omission. The success of the action was of undoubted importance to the client.