I have a matter whereby a deed of variation will be entered into to allow a friend close to the deceased to benefit from the estate.
However, the friend is one of the witnesses of the original will. What impact if any, is this going to have on his ability to inherit via the deed of variation?
If there is case law or commentary on this, I would be grateful to be directed to this.
Don’t know any case law but just on first principles this should be fine.
A DoV does not actually vary the will retrospectively so the will remains perfectly valid. The Dov is just a subsequent change agreed between the parties and (if they are not parties) enforceable against the executors under general property law principles. The retrospective aspect is just a fiction for tax purposes.
It may be prudent to have a new Will made to avoid confusion. |The cost should be similar to a codicil with the right solicitors.
(I read the question as the testator being dead so a new will might cause quite a lot of confusion!)
yes the testator is deceased. This has been helpful thank you.
Where a beneficiary attests a will, they may still benefit under a codicil, and vice versa even if the codicil confirms the will.
As Andrew points out, a variation is a matter between the parties to the variation and does not affect the will (merely the dispositions of the estate) so that it would be a very odd situation if the witness could not benefit under the variation.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I have used a DOV to correct a failed legacy in a Will where the legatee could not benefit due to having witnessed the Will. The other beneficiaries were happy to execute a DOV to give a sum to the intended beneficiary equal to the legacy they would otherwise have received. A DOV is simply a gift with some tax fictions applied to it - the rules and formalities of the Wills Act should have no bearing on it
Thank you all, most helpful.