Applying for the rectification of a will in Scotland

Dylan Mitchell, a Senior Solicitor in the Dispute Resolution team at Blackadders LLP, explains how an application for the rectification of a will can be brought in Scotland.

Can you rectify a will in Scotland?

Rectification of a will in Scotland is still a fairly new remedy. Introduced by the Succession (Scotland) Act 2016, the remedy of rectification provides a route to cure a will where it fails to express properly what the testator (the person making the will) had instructed.

What appears, at face value, to be a straight-forward remedy has the potential (arguably as a result of drafting oversight) to give rise to interesting and novel questions of applicability should applicants seek to test its limits.

When can you rectify a will in Scotland?

An application for rectification can be made in respect of a will where the testator died on or after 1 November 2016. A will is defined as ‘any document of a testamentary nature’ and includes testamentary trust dispositions and codicils.

Under Section 3 of the 2016 Act, the court is given powers to order that a will be rectified in such a way to give effect to the testator’s true instructions. For the remedy to apply, the court must be satisfied that:

the testator died domiciled in Scotland, leaving a will
the will was drafted not by the testator but on the testator's instructions
the will fails to express accurately what was instructed

In terms of Section 3(1)(c) of the 2016 Act, ‘a person’ may apply to the court for rectification of a will. The Act does not define which persons can competently bring an action, although it is presumed that the usual rules requiring title and interest would apply. The undefined scope of who may bring an application might provide a basis for novel or interesting applications which seek to test the limits of the provision, but so far that does not appear to have occurred.

How do you apply for the rectification of a will in Scotland?

An application can be raised in either the Sheriff Court or the Court of Session. If raised in the Sheriff Court, as is common for statutorily created remedies, the application will usually proceed by way of summary application. The application can be brought:

Within the sheriffdom in which the testator was habitually resident at the date of death.
Within the sheriffdom in which the testator's executor obtains Confirmation.
Where the testator was not habitually resident in a particular part of Scotland, or the particular part of Scotland in which the testator was habitually resident is not known or is uncertain, in the sheriffdom of Lothian and Borders at Edinburgh.

In terms of the summary application rules, the sheriff may make an order for intimation of the application to any person who appears to the court to have an interest in the summary application. In the case of rectification, an order for intimation to the beneficiaries (or potential beneficiaries should rectification be successful) of the estate is to be expected.

An application for rectification must be made within 6 months of the date of a grant of confirmation, or, in any other case, within 6 months of the date of the testator's death.

If followed strictly, the application of the timescales set down in Section 4(1) can lead to an anomalous result whereby an application brought more than 6 months after the date of death of the testator, but before a grant of confirmation has been obtained would, strictly speaking, not be competent. This does appear - somewhat ironically - to be a drafting oversight. In any event, the court has the power to consider an application which is made out of either 6 month period if it is persuaded on cause shown.

What considerations are there when applying for the rectification of a will?

Who wrote the will

It is worth reiterating that for an application to be competent, the will must have been drafted by someone other than the testator themselves. The typical scenario envisaged is one where the will has been professionally prepared on the instructions of the testator, however – as was the case in Somerville v Allan [2023] – it can also include circumstances where the will has been prepared by a family member or a friend on the testator’s instructions.

Extrinsic evidence

In a departure from the general rules of interpretation, when considering applications for rectification, the court may take account of evidence extrinsic to the will. It is likely that this evidence will come in the form of file notes documenting the taking of instructions, a letter of instruction written by the testator to the drafter and oral evidence.

Instruction v intention

Perhaps importantly, a distinction could be drawn between what was instructed and what the testator intended. The court must be satisfied that the will fails to reflect accurately what was instructed, not what was intended. These are not necessarily one and the same. A circumstance can be imagined where an applicant seeks to persuade the court that the testator intended something different from the actual terms of the will, but the will does reflect what was actually instructed.

Take the example of a sizeable legacy bequeathed to an English charity where there is also a Scottish equivalent. It might be clear from the evidence that the testator’s intention was for the Scottish charity to receive the legacy but equally clear that what was instructed, albeit mistakenly, was a legacy in favour of the English one. Given the undefined scope of who may bring an application, would it be open to such a charity to bring a claim? On a strict reading of the provision, in such a case, an application for rectification should be bound to fail.

However, as is highlighted by Roddy MacLeod₁: ‘It has not yet been determined whether evidence of the tenor of a testator’s instructions may be implied from evidence of the testator’s intentions’. Indeed, the Policy Memorandum which accompanied the original Bill made clear that the Bill was introduced to provide a power of rectification ‘where it can be shown that [the] terms [of a testator’s Will] do not reflect the testator‘s intentions’ and that ‘[i]n order to establish the testator‘s intention, the court should be able to look at extrinsic evidence’. Again, this does not appear to be wholly reflected in the provision.

Finnie v McClure [2022] S.L.T. (Sh Ct) 199

Finnie v McClure 2022 S.L.T. (Sh Ct) 199 - one of the few reported cases on rectification of wills – touches upon the interaction between intention and instruction. It concerned correspondence between a testator and their solicitor regarding various versions of a draft will.

The final will executed by the deceased contained a residue clause which differed from a previous draft. The deceased had not instructed such a change to the final draft and the court considered that the absence of such a positive instruction was evidence that the testator had not intended the provisions in the final signed version of the will. Rather, it was more likely that the testator had simply not noticed the change in the draft.

Sheriff Deutsch, at paragraph 15 stated that, “I do not find it plausible that having received the second draft containing a different residue clause, which he had not expressly instructed, the deceased altered his previous intention to benefit the pursuer”. Despite the exact terms of the provisions in the 2016 Act referring to what was instructed, it seems to be that the provision can be interpreted purposefully to take account of the testator’s actual intention. How far this can be pushed, however, may be the subject of future litigation.

Summary

Despite being a relatively new remedy and one with few reported cases, the ability to rectify testamentary provisions which do not accurately reflect what was instructed is an important one which could have wide application.

Perhaps as a result of drafting oversight, the extent of the provision’s operation and applicability is not clear. There is ambiguity around:

the type of ‘persons’ who may raise an application
the operation of the timescales within which an application must be brought
perhaps most importantly, whether the court will treat evidence of the testator’s intentions as evidence of the testator’s instructions

In the absence of legislative amendment, answers to these interesting and novel questions will only develop as applicants seek to test the limits of this remedy.

About the author

Dylan Mitchell is a Senior Solicitor in the Dispute Resolution team at Blackadders LLP. He handles a variety of contentious matters on behalf of both private individuals and business entities and has particular expertise in advising on disagreements arising from Wills, Trusts and the administration of the Estates of people who have died.

Find out more

Succession (Scotland) Act 2016 (Legislation)

Summary applications (Scottish Courts and Tribunals Service)

Images

Adobe Stock

References

MacLeod, R.A.S. (2024) Contentious Executries. 2^nd Edition. W. Green, Scotland. Page 96.

Publication date

3 September 2025

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.