Commentary on Sections Testamentary documents and special destinations Section 4 – Rectification of will: supplementary
19.This section provides that an application made under section 3(1)(c) for rectification of a will must be made within 6 months from the date of confirmation, if applicable, or the date of death if not (subsection (1)). Confirmation is a legal document from the court giving the executor(s) authority to uplift any money or other property belonging to a deceased person from the holder (such as the bank), and to administer and distribute it according to law. The court has discretion to waive the time limit on cause shown (subsection (2)).
20.Subsection (3) provides that where the court makes an order requiring a will to be rectified, the order will be registered in either the Books of Council and Session or the sheriff court books, depending on where the will is registered.
21.Subsections (4) and (5) provide that where execution of a document is necessary to give effect to a rectified will and the person who requires to execute the document is unable or unwilling to do so, then the court may dispense with this requirement and direct a clerk of session or a sheriff clerk to execute the document. In the above circumstances, subsection (6) provides that such a document executed by a clerk of session or the sheriff clerk will have the same force and effect as if it had been executed by that person who is unable or unwilling to execute the document.
22.As noted above, subsection (7) provides that where a trustee or executor has distributed property in good faith in accordance with a will which is subsequently rectified after the distribution, they will not be held personally liable for that distribution where subsequent rectification of the will means that the property should not have been distributed in that way.