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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.