Rectification of Wills – A Welcome Development?

In Scotland, it has been possible for some time to seek rectification of a defectively expressed document – but not a Will, although Lord Hodge appears to have suggested in the Marley v Rawlings case referred to below that a limited form of rectification of a Will may have been possible at common law in Scotland– however, this will change from 1 November 2016.

Section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 provides:-

(1)Subject to Section 9 of this Act, where the Court is satisfied, on an application made to it, that:-

(a)A document intended to express or give effect to an agreement fails to express accurately the common intention of the parties to the agreement at the date when it was made; or

(b)A document intended to create, transfer, vary or renounce a right, not being a document falling within paragraph (a) above fails to express accurately the intention of the granter of the document at the date when it was executed.

it may order the document to be rectified in any manner that it may specify in order to give effect to that intention.

Section 8(2) of the 1985 Act provides that the Court shall be entitled to have regard to all relevant evidence, whether written or oral.

However, Section 8(6) of the Act states that “nothing in this section shall apply to a document of a testamentary nature”.

A number of cases have been brought to Court under Section 8 of the 1985 Act. In the case of Bank of Scotland –v- Graham’s Trustee 1992 SC 79 Section 8 was invoked with a view to rectification of a defective Standard Security. The joint heritable proprietors of property in Broxburn, West Lothian had executed a Standard Security in favour of the Bank which was recorded on 4 June 1985. After sequestration of one of the heritable proprietors, it was noted that the security was defective. The heritable proprietors had signed the Standard Security as Debtors – but it had not done so as heritable proprietors. They had also signed the Schedule relative to the dispositive clause. The Bank petitioned the Court for rectification of the Standard Security in terms of Section 8(1) of the 1985 Act. However, the Trustee in Bankruptcy opposed the Petition on the basis that, firstly, the proprietors had granted a Personal Bond only and, that being so, the Court had no power to rectify part of a document which had not been granted by the granter; Secondly, the Trustee in Sequestration argued that the provisions of Section 8(1) were limited to errors of expression within the terminology of the document and could not extend to a defect in its execution. The Lord Ordinary allowed a Proof before Answer on the Bank’s averments. The Trustee in Bankruptcy reclaimed.

The First Division held that the signature of the heritable proprietors on the Schedule was sufficient to demonstrate from what appeared in the face of the document that the signatories were in fact holding themselves out as proprietors of the property and that their purpose in executing the Schedule was indeed to create a Standard Security. Secondly, the phrase “express accurately” could cover a range of inaccuracy from errors of expression to errors of omission. Thirdly, a case of defective form filling fell within the range of such inaccuracies so long as the Court was not being invited to supply signatures which were not there at all or to cure other defects of such a fundamental kind that the deed could not have been said to have been executed at all. The Inner House held that the case fell within the range of inaccuracies described and the Reclaiming Motion by the Trustee in Bankruptcy was refused.

Section 8 was invoked in the much more recent case of Nickson’s Trustees Petitioners 2016 CSOH 119.

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Lady Nickson had executed a Will in 2004 in terms of which she made provision for a Nil Rate Band Discretionary Trust in the event that her husband (Lord Nickson) survived her for at least 30 days. Lady Nickson died on 3 September 2012 and Lord Nickson having survived her for the required 30 day period, the Nil Rate Band Discretionary Trust was duly established.

Lady Nickson had of course executed her Will prior to the introduction of the Transferable Nil Rate Band on 9 October 2007. Lord Nickson was detailed as a beneficiary under the relevant Discretionary Trust but on advice from their Solicitors, the Trustees decided effectively to “do away” with the Nil Rate Band Discretionary Trust by making use of the provisions of Section 144 of the Inheritance Tax 1984 – effectively appointing out the assets of the Discretionary Trust to the surviving spouse within two years of the other spouse’s date of death. Such a methodology preserves the entitlement of the Executors of the surviving spouse on death of the latter to claim a Transferable Nil Rate Band.

A Deed of Appointment in terms of Section 144 of the 1984 Act was drawn up and signed by the Trustees on 20 and 25 October 2012. However, in effect the Trust was wound up within three months of Lady Nickson’s death. Unfortunately, following the decision in Frankland –v- IRC 1997 STS 1450, the result was that Lady Nickson’s Nil Rate Band was in fact lost.

The Petitioners sought to have the Deed of Appointment rectified by adding the words “such appointment to come into effect only after 5 December 2012 (and not before then)”.

The Trustees gave evidence that it had been their intention that the Trust should be terminated in such a way as would allow Lady Nickson’s unused Nil Rate Band to be transferred to her husband and claimed by his Executors on his death. They acknowledged that at the time of executing the Deed of Appointment, they had been unaware of the “three month rule” set down in the Frankland –v- IRC case.

The Petition was opposed by HMRC. Counsel for HMRC argued that it had been the intention of the Trustees to wind up the Trust with immediate effect – and this had been achieved in terms of the Deed of Appointment. HMRC submitted that the rectification sought would not give effect to the intention of the Trustees at the date of granting the deed. Put another way, the Trustees at the time of executing the Deed of Appointment had no intention of delaying the coming into effect of the deed. It was argued on behalf of HMRC that, if the Court took account of the Trustees arguments, this would effectively be inviting the Court to “rewrite history”.

Lord Turnbull favoured the arguments put forward on behalf of HMRC. Lord Turnbull stated “it does not seem to me that the scope of Section 8(1)(b) can permit the Court to change a Deed of Appointment, which validly creates the legal right intended, so as to delay its effect in order to take account of an entirely separate legal rule which the granter was unaware of at the time the intention to create, transfer, vary or renounce the right was formed”. Lord Turnbull took the view that the fact that the Trustees had not achieved the underlying purpose of the Deed of Appointment was not within the scope of rectification in terms of Section 8(1)(b) of the 1985 Act.

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It is interesting to note that there appears to have been no suggestion that Section 8(6) of the 1985 Act had any application here, even although the underlying document was the Will of the late Lady Nickson.

In England, a right to rectify defectively expressed document has existed for many years. Under Section 20 of the Administration of Justice Act 1982, a Court can rectify a Will that is “so expressed that it fails to carry out the testator’s intentions in consequence of:-

(a)A clerical error; or

(b)A failure to understand his instructions.

Section 21 of the 1982 Act (sub-section (ii)) provides that “extrinsic evidence including evidence of the testator’s intention may be admitted to assist in its interpretation”.

However, until now, there has been no right in Scotland to seek rectification of a defectively expressed Will. In fact, for a number of years, Scottish Courts have adhered to the view of Viscount Dunedin in the case of Young’s Trustees –v- Young 1927 SC 6(HL) where he stated:-

“There are cases where the words used are such that the Court is bound to give an interpretation which in its heart (at Court) is perfectly certain is not what the testator would have wished.”

This of course is meant that complaints (increasingly commonplace nowadays (unfortunately) it would appear) that the Will did not express what the testator wished would be irrelevant (although not so in England if Section 20 of the 1982 Act could be invoked).

However, the position in Scotland will change (with effect from 1 November 2016) in terms of Section 3 of the Succession (Scotland) Act 2016. Section 3(1) applies where:-

(a)A person (“the testator”) dies domiciled in Scotland, leaving a Will;

(b)The Will was drafted not by the testator but on the testator’s instructions;

(c)After the date of death, a person applies to the Court for rectification of the Will; and

(d)The Court is satisfied that the Will fails to express accurately what was instructed.

Section 3(2) allows the Court to order that the Will be rectified in such manner as the Court might specify so as to give effect to the testator’s instructions. Section 3(3) allows the Court to have regard to extrinsic evidence for the purposes of sub-sections (1)(b) and (2).

The action for rectification can be raised either in the Sheriff Court or in the Court of Session.

How will Section 3 be applied in Scotland?

There is an interesting difference between Section 20 of the 1982 Act and Section 3 of the 2016 Act. In England, the right of the Court to intervene is restricted to clerical error or a failure to understand the testator’s instructions. Section 3(1)(d) appears to the author to be wider than the provision which applies in England and Wales.

It remains to be seen how Section 3 will be interpreted by Scottish Courts but an examination of English cases may give some guidance to Scottish Practitioners (albeit that it may be the case that the Scottish provision is indeed wider than that in England).

In England, the phrase “clerical error” has been defined as an inadvertent error made in noting the testator’s intended words (Wordingham v. Royal Exchange Trust 1992 Ch 412). It also includes incorporating something which was not intended or omitting something which was intended (Bell v. Georgiou 2002 EWHC 1080 (Ch)). In one fairly English recent case, the client intended to leave his “one half share” of a particular property to named relatives. However, the draftsman by mistake wrote “one half of my share”. The Court held that this was an error capable of rectification (Joshi and Others v. Mahida 2013 WTLR 859). However, Section 20 cannot be brought into play in England and Wales where the draftsman had understood the client’s instructions and had endeavoured to draft an appropriate provision – but the wording used by the draftsman failed to achieve the testator’s intentions (Re Seigman 1996 Ch 171).

For appropriate consideration of the position in England, I would refer you to the case of Marley –v-Rawlings & Another 2014 UKSC 2. In that particular case, the Solicitors who had prepared Wills for a married couple had them execute the wrong Wills – the husband signed the wife’s Will and vice versa.

Mr. Marley was not the natural child of the testators Mr and Mrs Rawlings. However, he had been effectively treated as a son by them for many years. Mr and Mrs Rawlings had two other children whom they did not intend should benefit from their Estates. Mrs. Rawlings died first but as no administration of her Estate was required, the error was not noticed. It only came to light when Mr. Rawlings had died. Mr. Marley applied for Probate and for rectification of the document that Mr. Rawlings had signed. He failed at first instance and on Appeal. In Summary, the reasons were

(a)The document signed by Mr. Rawlings had not complied with Section 9 of the Wills Act 1837. Firstly, the document was not his Will and was therefore not signed by the testator. Secondly, it was held that Mr. Rawlings had not intended to give effect to the document he had signed (being his wife’s Will) as his own. At first instance, the view was therefore taken that the document was not a Will which could be rectified under Section 20 of the 1982 Act.

(b)Again at first instance, Justice Proudman had found that even if the document did fall to be regarded as a Will for the purpose of Section 20, the Court could not give effect to the rectification requested by Mr. Marley. Justice Proudman took the view that the error made by the Solicitor did not fall into the character of a “clerical error”. It was quite a different error to. for example the slip of a pen, a mistype or a failure to copy, cut and paste clauses correctly.

(c)Mr. Marley also failed in the Court of Appeal. Lord Justice Black gave the leading judgement. Whilst he expressed regret at the outcome – that Mr. Rawling’s Estate would pass to two individuals whom he and his wife would not want to benefit, rather than their chosen beneficiary, he also stated that the party most likely to have lost in the outcome was not Mr. Marley himself who would have a “White v. Jones” claim against the Solicitor – but also the Solicitor’s insurers.

The Court of Appeal decision went to the Supreme Court.

In the Supreme Court, Lord Neuberger gave the leading opinion. He found

  • The document signed by Mr. Rawlings was in fact formally valid. The testator had signed the document with the clear intention that it was his Will and in front of witnesses. In his view, the document did satisfy the formality requirements set out in Section 9 of the 1837 Act.
  • Even if the document had not been a valid Will, Mr. Marley would still have been entitled to invoke Section 20 of the 1982 Act. In Lord Neuberger’s view, the reference in Section 20 to “a Will” meant “any document which is on its face is bona fide intended to be a Will” or “a document which, once it is rectified” is a valid Will.
  • There was no reason why the expression “clerical error” had to be given a narrow interpretation. Given the purpose of the legislation in question, Lord Neuberger took the view that “clerical error” should be interpreted by the Court as widely as the words of Sections 20 might allow – including mistakes “arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of a document, save possibly to the extent that the activity involved some special expertise”.
  • There was no limit to the extent of the Court’s power to rectify Wills. In the view of Lord Neuberger, Courts could make wholesale amendments so far as required. However, he did state “the greater the extent of the corrections sought, the steeper the task for a claimant seeking rectification.”

The Supreme Court therefore held that the remedy of rectification should be applied in that particular case as the Court took the view that this was a clerical error. However, Lord Justice Neuberger did introduce a caveat – rectification would not be applied where the drafting involved special expertise not just the normal day to day preparation of the Will. Lord Justice Neuberger’s caveat was applied in the very recent English case of Reading & Another –v- Reading & Others 2015 EWHC 946(Ch).

In the Reading case, the Plaintiff sought a declaration as to the proper construction of the term “issue” in the definition of beneficiaries of a Nil Rate Band Will Trust. The High Court held that the remedy of rectification would not be available where a Solicitor used a precedent (style) including the term, which did not reflect the testator’s wish that his stepchildren, and their children would be included.

The High Court declined to apply the statutory provision regarding rectification of Wills in England under Section 20 of the Administration of Justice Act 1982.

If the author’s view is correct – that the provisions of Section 3 are in fact wider than those of Section 20 of the 1982 Act then it may well be that the case of Reading & Another referred to above would have been decided differently in Scotland. What is certain is that Section 3 of the 2016 Act will, in the author’s view, precipitate considerably more litigation in relation to “disputed Wills”. This of itself means that strict and close record keeping will be required even more so than perhaps at present. Our profession will require to keep detailed notes of discussions with clients outlining their reasons for particular provisions of their Wills. Up until now, such evidence might have been seen as extrinsic and not admissible. From and after 1 November 2016 and in so far as Section 3 of the Act is concerned, it will be not only admissible but may be highly relevant.

John Kerrigan

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