Committee
Delegated Powers and Law Reform Committee 22 September 2015
22 Sep 2015 · S4 · Delegated Powers and Law Reform Committee
Item of business
Succession (Scotland) Bill: Stage 1
Nick Holroyd
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I will just outline our position, which is based on issues of both principle and practicality—there is an overlap between the two. In principle, it seems to us that if someone makes a clerical or other type of error in a DIY will, their intentions are being defeated if there is no opportunity for rectification. There is an English case called Williams 1985, as reported on pages 911-12 of “Weekly Law Reports 905”, in which the English judge makes the point—and it is not a binding comment, but an aside—that you do not need to have a clerk to make a clerical error. One can easily imagine someone who is perfectly capable, in the sense that they have capacity and are not being unduly influenced by anyone, deciding to make their own will, making a rough draft with annotations and then, particularly if they are obsessive compulsive—if I can use that phrase in a loose and non-politically correct way—deciding that they wish to make a fair copy. As one can imagine, it would be very easy to miss something out in the process of making the fair copy of the will. For example, they may have identified their children or grandchildren by name or otherwise and then, for no good reason other than that they have made a clerical-type error, one of them does not appear in the version that they sign. I appreciate that there could be evidential issues, but TrustBar does not consider that the evidential tail should wag the dog in this case. 11:30 There are also, I would suggest, practical reasons for favouring a wider approach. The first of those is that there could easily be difficulties in discerning whether one is dealing with a purely DIY will or one that has been either prepared or drafted—depending on the terminology that one favours. At the moment, one tends to think of people either getting a will form from the post office and filling it in and signing it, or using a comparable online version. It seems to me that there could be different sorts of errors. With an online will system where one is asked questions and the answers to the questions lead to a will being drafted, there could be problems with the software or, as we have all done when asked to fill in our email address on an online form—one is asked to enter information and then enter it again—a testator might just copy and paste and thereby complete the answer imperfectly. Therefore, it seems to me that there could be grey areas. Our view is that the provision should extend to DIY wills, but if one is going to go down the route of excluding DIY wills, one would need to say something along the lines of “wholly drafted” or “wholly prepared”. There is an even more mundane example of a mixed situation. A solicitor could draft the will and, because he or she is a sophisticated will drafter, use defined terms. The testator could then skim through the will and see a reference to a particular defined term, say, “No, that is not what I meant,” and change it, and that could have knock-on effects. If we are against statutory rectification for DIY wills, I think that the word “wholly” should be in the bill. However, we would favour the broader approach. The final point is a practical one as well. If DIY wills were to be excluded from the statutory rectification regime, and if the committee favoured TrustBar’s position that the statutory rectification regime should not prejudice the existing common law, whatever that may be, someone who is faced with a DIY will might well attempt, particularly in light of Lord Hodge’s comments in an English appeal to the UK Supreme Court—although in that case, called Marley, it was not a DIY will—to go down the common-law route rather than the statutory route. It seems to me better on the whole if people’s first port of call is the statutory regime and they go down the common-law route only if the statutory regime does not accommodate them. For those reasons, which are a combination of matters of principle and of practical matters, we favour an approach that would allow rectification. We should bear it in mind that, in civil matters, there may be evidential difficulties, but one is nearly always dealing with a balance of probabilities, and that is something that advisers and the courts have to face up to. No doubt there will be the odd duff claim, but equally there may be some well-grounded ones. It would be for the person seeking rectification to make their case on the balance of probabilities. I would like to pick up a point from Professor Paisley’s evidence. There was a suggestion that the court could use great imagination, great skill and breadth in interpreting wills, and that is true. However, it seems much better if one can separate off interpretation of a document from rectification. One might say, “Properly interpreted, the will means this and Johnny should benefit,” and that if the will does not bear that interpretation, it should be rectified to bear that interpretation. Although there is merit in what Professor Paisley said, it is desirable to keep clear in one’s own mind the distinction between interpretation and rectification. One of the very fashionable things that has come from south of the border, and which I am not wildly enthusiastic about, is the idea of trying to treat the interpretation of wills in exactly the same way as the interpretation of contracts. One of the differences that I would suggest should exist in relation to the interpretation of wills is that there should be a general reluctance to try to have all sorts of evidence from outside the will brought in. Yes, one can put oneself on the arm of the testator’s chair when he made the will, but what you cannot do, generally speaking, is to have a trawl over all the evidence to see what the person meant. We should keep interpretation separate from rectification. That adds weight to the idea that we would be more likely to produce a fair outcome if there were rectification for DIY wills.
In the same item of business
The Convener
SNP
Agenda item 2 is oral evidence on the aforementioned Succession (Scotland) Bill. We have two panels: first, a panel of legal academics and secondly, witnesse...
Professor Janeen Carruthers (University of Glasgow)
In terms of seeing action and movement, two bills is the sensible way forward. Once two bills become two acts, it might be sensible to consolidate them, so t...
The Convener
SNP
When that consolidation occurs—assuming that it does—would it be practicable to try to consolidate absolutely everything in statute at that point or would th...
Professor Carruthers
That gives rise to the question whether it is necessary to put into legislative form a rule that already operates effectively at common law. Personally, I do...
The Convener
SNP
I am not a succession lawyer, but there will be previous statutes that still interact—I rather imagine that there will be several, given the way that law is ...
Professor Carruthers
My view is that it is better to have fewer pieces of the jigsaw that have to be put together. It is simpler to work from a smaller number of statutes than fr...
Professor Elizabeth Crawford (University of Glasgow)
Perhaps it would be too big a task to try to put absolutely everything into some compendious act in the future. After all, the formal validity of wills is ni...
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
SNP
Forgive me, Professor Carruthers, but I want to be clear. You used the phrase “In my personal view”. Do you have another hat that you might wear with which y...
Professor Carruthers
It was exactly the latter. I simply did not want to suggest that I was giving the panel’s view.
Stewart Stevenson
SNP
That is fine. Thank you.
Professor Roderick Paisley (University of Aberdeen)
It would be possible to consolidate the existing statutory material on the law of succession into one act after the two bills are enacted. However, it would ...
The Convener
SNP
I am grateful for those general comments. We will, of course, get into the details of the bill but I will pursue one more general question. Do any of you hav...
Professor Crawford
It is an excellent idea to separate the technical from the more policy-driven or controversial issues, but the difficulty lies in drawing the dividing line a...
The Convener
SNP
I appreciate that. Section 9 is one that we will undoubtedly come to.
Professor Paisley
I would like to make a point about the Forfeiture Act 1982, which is being amended in the Succession (Scotland) Bill. I am quite surprised at that; I think t...
The Convener
SNP
Thank you for that comment, which is much appreciated. Stewart Stevenson will look at section 1 and the effect of divorce.
Stewart Stevenson
SNP
I want to probe the provisions in section 1 in relation to guardians of a child, to see whether they cover instances in which a will has appointed a former s...
Professor Carruthers
I think that the Law Society of Scotland drew particular attention in its written evidence to the inclusion of the word “guardian” in section 1(1)(a)(ii). I ...
Stewart Stevenson
SNP
Right. No one else wishes to contribute, so I will move on. TrustBar has raised the issue of whether section 1 should take effect at the point at which the m...
Professor Crawford
I have given some thought to this and I tend to favour the characterisation and the manner of drafting that are laid down at present. It is always difficult ...
Professor Carruthers
The written evidence from the Faculty of Advocates suggests that section 1(1)(d) could be drafted according to the testator’s domicile at the date of the div...
Professor Crawford
It is really a nice point. There is a rule, supported by precedent, that the question whether a will is revoked by a marriage is a matter of matrimonial law,...
Stewart Stevenson
SNP
Is there a practical issue as well? First, as Professor Crawford said, it would be a divorce recognised under Scots law, which is immediately restricting, so...
Professor Crawford
Yes, there is a practical issue.
Professor Carruthers
Section 1 is about applicability. It starts with the words, “This section applies where”, so tying it to the testator’s domicile at death is sensible in so f...
The Convener
SNP
Professor Paisley, do you have anything to add?
Professor Paisley
Yes, I would like to comment on the way that section 1 is designed. It is a provision of the law of succession, and the real intention, in the guts of the bi...
Stewart Stevenson
SNP
I want to open up some of the terminological difficulties that I have had as we have looked at this. There are two other places in the bill where a person is...
Professor Paisley
The fewer legal fictions that we have, the better. You should try to move the law so that it is as consonant as possible with the actual intentions of the te...
Professor Crawford
In relation to what Professor Paisley said about section 1(2), to save a lot of redrafting, it might be possible to say, “For the purposes of the benefits or...