Will Rectification in Scotland: Correcting Mistakes in a Will

Can a Will Be Corrected After Death in Scotland?

A Will is intended to give effect to a person's wishes after their death. However, mistakes can sometimes occur when a Will is prepared.

A document may contain a drafting error, a clerical mistake, or wording that does not accurately reflect the instructions given by the person making the Will.

Where this happens, the Scottish courts have the power to rectify the Will in certain circumstances.

Will rectification is a specific legal remedy designed to correct mistakes so that the Will properly reflects what the deceased intended.

What Is Will Rectification?

Will rectification is the process of asking the court to correct a Will where it fails to accurately express the deceased's instructions because of a mistake.

The purpose of rectification is not to rewrite a Will or change the deceased's wishes. Instead, it is intended to put right an error so that the document gives effect to the intentions that already existed.

A successful rectification application may alter the wording of the Will so that it reflects what the deceased intended when the Will was made.

When Can a Will Be Rectified in Scotland?

A Will may be capable of rectification where:

• There is a clerical error in the document.

• The wording of the Will does not accurately reflect the deceased's instructions.

• The person preparing the Will failed to correctly record the deceased's wishes.

• The Will contains wording that produces an unintended result because of a mistake.

The central question is whether the Will, as written, fails to give effect to the deceased's actual intentions.

Examples of Mistakes That May Lead to Rectification

Examples of situations where rectification may be considered include:

Incorrect Details of a Beneficiary

A beneficiary's name or details may have been recorded incorrectly, meaning that the gift does not operate as intended.

A Gift Missing From the Will

A person may have instructed that a particular asset should pass to someone, but that provision was accidentally omitted from the final Will.

Incorrect Wording

A drafting error may mean that a clause has a different meaning from the one intended by the person making the Will.

Instructions Not Properly Followed

A solicitor or other person preparing the Will may have failed to accurately incorporate the instructions given by the deceased.

In each case, the evidence surrounding the preparation of the Will will be crucial.

What Does the Court Consider in a Will Rectification Application?

The court will consider whether the Will fails to express the deceased's intentions because of a mistake.

Evidence may include:

• The Will itself.

• Draft versions of the Will.

• Notes taken when instructions were provided.

• Correspondence between the deceased and the person preparing the Will.

• File records from the solicitor who drafted the Will.

• Evidence from witnesses involved in the preparation process.

The court's focus is on establishing what the deceased intended and whether the Will accurately reflects those intentions.

Is Will Rectification the Same as Challenging a Will?

No.

Will rectification is different from challenging the validity of a Will.

A challenge to a Will usually involves arguing that the Will should not be accepted as valid, for example because of concerns about capacity, undue influence or improper execution.

Rectification accepts that the Will itself may be valid but argues that the wording does not properly record the deceased's wishes because of a mistake.

These are different legal processes with different requirements.

Who Can Apply for Will Rectification?

An application may be relevant where someone has an interest in the estate and believes that the Will does not accurately reflect the deceased's intentions.

This may include beneficiaries, executors or others affected by the wording of the Will.

Whether someone has standing to raise proceedings will depend on the circumstances of the particular case.

What Happens If a Will Is Rectified?

If the court grants an application for rectification, the Will is corrected so that it reflects the deceased's intentions.

The estate can then be administered on the basis of the rectified Will.

Where the wording of a Will affects the distribution of significant assets, obtaining the correct legal remedy at an early stage can be important.

What Evidence Is Needed for Will Rectification?

Evidence is often the most important aspect of a rectification application.

A court will usually need to see clear evidence showing:

• What instructions the deceased gave.

• How those instructions were recorded.

• Where the mistake occurred.

• What the Will should have said to reflect the deceased's intentions.

Contemporaneous documents are often particularly important, including solicitor notes and correspondence created when the Will was prepared.

How Long Do You Have to Apply for Will Rectification?

The appropriate timescale will depend on the circumstances and the stage reached in the administration of the estate.

Anyone who believes a Will contains a mistake should seek legal advice promptly. Delay may make matters more complicated, particularly where estate assets have already been distributed.

Frequently Asked Questions

Can a Will be changed after someone dies in Scotland?

A Will cannot simply be amended because beneficiaries are unhappy with its terms. However, where the Will contains a mistake and does not reflect the deceased's intentions, the court may be able to order rectification.

What is the difference between Will rectification and challenging a Will?

Rectification is about correcting mistakes in a valid Will. Challenging a Will usually involves arguing that the Will itself is invalid.

Can a solicitor's mistake be corrected?

Potentially. If a solicitor failed to accurately record a person's instructions, an application for rectification may be possible. There may also be separate issues regarding professional negligence depending on the circumstances.

How do I prove a Will contains a mistake?

Evidence such as solicitor notes, draft documents, correspondence and witness evidence may help establish what the deceased intended.

Can the court rewrite a Will?

No. The purpose of rectification is not to rewrite a Will but to correct a mistake so that the document reflects the deceased's actual intentions.

Why Choose Seaward Law?

A mistake in a Will can have significant consequences for beneficiaries and the administration of an estate.

We advise clients on Will rectification applications and disputes arising where a Will does not accurately reflect the deceased's intentions.

We provide clear advice on the evidence required, the available court remedies and the most effective way to resolve the dispute.