Commentary on Sections Testamentary documents and special destinations Section 3 – Rectification of will
14.This section enables the Court of Session or the relevant sheriff court to rectify a will prepared by someone other than the testator where the court is satisfied that the will failed to give effect to the testator’s instructions. Rectification is confined to situations in which a person other than the testator prepared the will on the testator’s instructions (subsection (1)(b)) and where a person applies to the court for rectification of that will (subsection(1)(c)). Rectification is only competent where the court is satisfied that the will fails to express accurately what was instructed (subsection (1)(d)) and there must therefore be instructions with which to compare the executed will. Those instructions need not necessarily be in writing. In reaching a decision on whether or not a will requires to be rectified, the court may take account of evidence which is extrinsic to the will (subsection (3)). Rectification under this section may only take place where the deceased died domiciled in Scotland (subsection)(1)(a)).
15.These provisions would for example cover: the situation where instructions have been incorrectly transposed by a third party drafter, whether or not the drafter was a solicitor; or wills made ‘online’ where a third party is taking instructions to produce the will. In any situation it would need to be clear to the court, based on evidence, that the will fails to express the testator’s instructions. The intention of the provision is that the power to rectify a will should be confined to cases where the will has been prepared by someone other than the testator where a comparison can be made between the testator’s instructions, supported by relevant evidence, and the will itself. The critical factor in the application of the provision is the involvement of another person. If a testator draws up their own will – whether on paper or online this section would not apply.
16.The process for seeking rectification of a will is by application and the normal rules of standing will apply, meaning that the court must be satisfied that the applicant, on cause shown, has sufficient interest in the application.
17.Subsections 5, 6 and 7 provide that the Court of Session, a sheriff of the sheriffdom in which the testator was habitually resident at the time of death, or, if the testator was not habitually resident in a part of Scotland at the date of death, or if it is unknown or uncertain the part of Scotland in which the deceased was habitually resident, a sheriff at Edinburgh, has jurisdiction to rectify the will on receipt of the application. In addition, a sheriff in the sheriffdom where confirmation was obtained will have jurisdiction to rectify a will on receipt of an application. Under section 3 of the Confirmation of Executors (Scotland) Act 1858, confirmation is based on where the testator was domiciled. In most cases a person will be domiciled where they are habitually resident but this is not always the case. Subsection (6)(b) would enable jurisdiction in a case where the testator was habitually resident in one sheriffdom but was domiciled in another sheriffdom
18.Subsection (4) provides that while the rectification will take effect from the date that the will was executed, regard should be had to sections 4(7) and section 24 of the Act. Section 4(7) protects executors and trustees from being held personally liable for distributing property in good faith, in accordance with a will which is subsequently rectified. Section 19 provides that where a beneficiary has sold property conveyed to him or her by the deceased’s executor under the unrectified will, subsequent rectification will not prejudice the title of whoever acquired the property in good faith and for value. Title is also protected if acquired directly from the executor.