Hello
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.
Hi I have a very similar situation where a major Residuary beneficiary acted as a witness to a homemade will. She was due to receive 50% of residue with her sister taking other 50% share. She has now unwittingly forfeited her entitlement as she acted as a witness.
I can see from the threads that a deed of variation will work in this situation. However how would the deed be worded as essentially there are no clauses of the will to delete and replace through the deed. The will does exactly what is wanted already, it’s just that by witnessing it the beneficiary is excluded.
Hopefully you can help. In this case the unwittingly excluded beneficiary is also sole executor (although her witnessing the will had no bearing on her appointment as executor).
Any light you can help shed on how the deed would be worded in this situation I’d be v grateful as there are essentially no clauses in the will to amend.
Many thanks in advance!
The variation will need to be made by all those who benefit from the failed share and, I suggest, would direct that the will to be read and construed as though the provisions of s.15 Wills Act 1837 did not apply to the terms of the will, to the effect that X is entitled to the 50% share of residue notwithstanding that she witnessed the testator’s execution of the will.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
That’s fantastic thank you so much for your guidance on this