Succession (Scotland) Act 2016 - Rectification of Wills

New deed provisions

Sections 3 and 4 of the Act provide that, in certain circumstances, the Court of Session or sheriff court may order that a will can be rectified so as to give effect to a testator's instructions. A will rectified in terms of these provisions has effect as if so rectified when it was first executed.   

Registration provisions 

The Succession (Scotland) Act 1964 had no provision for rectification of a will, which meant that any errors which had gone unnoticed until after the testator’s death could not be corrected. Sections 3 and 4 of the 2016 Act provide that, in certain circumstances, the Court of Session or Sheriff Court may order that a will can be rectified so as to give effect to a testator's instructions. A will rectified in terms of these provisions has effect as if so rectified when it was first executed.

Commencement

The Succession (Scotland) Act 2016 (Commencement, Transitional and Saving Provisions) Regulations 2016 set out that the provisions above which came into force on 1 November 2016. CAJR staff may see applications to register court orders as described above, although a large number of applications is not expected.

Application requirements

Section 6 of the Requirements of Writing (Scotland) Act 1995 sets out that a document that is not in self-proving form (i.e. signed and witnessed) cannot be registered in the RoD, unless if there is an enactment that authorises registration. Section 4(3) described above is the enactment that authorises registration of court orders that rectify registered wills, so staff can accept these documents without the need for them to have been signed and witnessed in accordance with the relevant provisions of the 1995 Act.  

Staff are not required to check that the details of any registered will referred to in a court order are correct: the court should satisfy itself on these details. Furthermore, staff need not check that the will is one in relation to which the rectification provisions in the Succession (Scotland) Act 2016 are capable of applying; again, it is for the court to satisfy itself that this is the case.

There is no prescribed form for this type of order, and it seems likely that the content may vary depending on the background. The 2016 Act specifies that it is the order itself should be registered and, for the Keeper's purposes, this means that an extract or CCI is acceptable.