The Court of Session has refused to rectify a deed made to dismantle a nil-rate band trust created under a will.  The deed fell into the so-called ‘Frankland Trap’.

“[51]      In the present case the trustees intended to create a right by executing the deed of appointment. They had no intention of delaying the creation of that right as they were unaware of any benefit in doing so.  The deed of appointment expressed accurately the intention of the trustees at the date when it was executed, since their intention was to create a right to the trust fund absolutely in favour of Lord Nickson. The legal result of the deed being executed was that the trust funds were made available to him, exactly as the trustees had intended. Applying the approach identified by Lord Macfadyen of identifying what the grantor intended by way of the creation, transfer, variation or renunciation of rights and then asking whether the legal effect of the language used in the deed achieved the result that the grantor intended to bring about, leads to the conclusion that there is nothing to rectify in the deed of appointment.  The fact that in bringing about their intended legal result the trustees fell into the “Frankland Trap”, and failed to achieve the underlying purpose of the whole exercise, seems to me to be a different matter and not within the scope of rectification.”

The full case report can be found here.