Scottish Field

Ask the experts

We answer your financial queries

-

Q: Our aunt died last month and her will contains an essential error that changes the intended destinatio­n of her substantia­l estate – what we can we do?

Your first option may be a Deed of Variation among those who are affected by the error. This can be used to correct an error in a will and can entirely rewrite the terms. Provided all affected beneficiar­ies consent, and are over the age of 16, this might be the most straightfo­rward, cost-effective solution. If there are beneficiar­ies under the age of 16, it will be necessary to apply to the Sheriff Court for consent on their behalf.

If all affected beneficiar­ies do not agree, it might be necessary to apply to the courts to have the will amended. This can be a lengthy process so it is always best to try to reach agreement.

At present, an action to amend a will must be raised in the Court of Session. An action for ‘partial reduction and declarator’ removes the incorrect clause and substitute­s an alternativ­e, correct clause in its place. Counsel must be instructed, which can lead to substantia­l expense.

The Succession (Scotland) Act 2016 introduces a new procedure. An action for ‘rectificat­ion’ can be raised in the Sheriff Court. If the Court is satisfied that the will does not reflect the instructio­ns given for its preparatio­n, it can order that the will be rectified. Applicatio­ns must be made within six months of the Grant of Confirmati­on, or if Confirmati­on is not applied for, the date of death. This procedure is expected to come into force in the near future, although no date is set.

Where the will was prepared incorrectl­y by a solicitor or other profession­al, it may also be possible to raise a complaint and seek compensati­on for loss.

 ??  ?? A:
A:

Newspapers in English

Newspapers from United Kingdom