Rectification of wills post-death becomes a reality

Prior to the enactment of the 2016 Succession Act, a will could not be rectified post-death. Accordingly, any errors which had gone unnoticed until after the testator’s death could never be corrected. Under the terms of the 2016 Act, a will can now be rectified, in certain circumstances.

There are certain conditions which must be met in order to rectify the will, namely:

1. the will must have been prepared by someone other than the testator and it clearly does not reflect the testator's wishes;
2. the application must be made to either the sheriff court or the Court of Session within six months of the date of death or six months of the date that confirmation was granted;
3. the application to the court must be made by a party with an interest in the application, with extrinsic evidence to support this claim; and
4. the deceased must have died in Scotland.

The provisions within the 2016 Act would appear to be aimed at correcting “mistakes” when preparing a will. It has been argued that it could open a route for disappointed beneficiaries who feel they should have received more from an estate and have been unable to do so due to professional “failings”.

As a result, it is now more important than ever to make sure a clear will is prepared to avoid uncertainty and delays for families. It is also essential to retain correspondence and file notes of meetings and discussions with the testator. This can assist a solicitor in ensuring that the will prepared accurately reflects the client’s wishes at the time of making the will but also provide extrinsic evidence of the reasons for particular provisions within wills that may later be examined in court.