Deed of variation not possible - Is this correct?

My father-in-law (B) died two months ago. His will left his tenants-in-common share of the matrimonial home to his surviving spouse (S) for life, and on her death into two discretionary trusts (i.e., 50% of his interest to each):

(a) One for my wife (50% of his interest) and remoter issue; and
(b) The other for my brother-in-law and remoter issue.

B and S had mirror wills prepared by a firm of solicitors who purportedly specialise in trusts to protect assets against care home fees. Wills with trusts for this purpose were completely unnecessary in this case, as my in-laws were never going to qualify for state benefits because of their other assets. Unfortunately, they never consulted with me before proceeding.

My mother-in-law (S), my wife and brother-in law would like to dispense with the trusts completely, so that B’s share of the property goes to S outright, and on S’s death to my wife and brother-in-law equally.

Having S’s will redrafted is not an issue. However, the solicitor who drafted B’s will is saying that his will cannot be varied, as the remoter issue of the discretionary trusts could have a legal claim against the executors. I am tax qualified but not legally qualified, so do not know whether this is correct. Any assistance from forum members would therefore be greatly appreciated.

If B’s will can be varied, the family will need a solicitor to deal with the matter, and also to redraft S’s will. Are there any suitable solicitors in South Manchester/Stockport who might be willing to take on this work?

Many thanks,
Mark McLaughlin

It would depend on the terms of the Will. However, if this is a ‘usual’ Will giving the surviving spouse an IPDI for life and thereafter on discretionary trusts, and the trustees have overriding powers to appoint assets to any beneficiary, then the Trust can be terminated and the half share appointed to the widow.

Kind regards

Ihsan Ali
I Will Solicitors Ltd

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Generally, in simple terms, a Deed of Variation is the device used to alter a fixed, absolute gift under a Will. For example half the residuary estate to adult son X. If X wants to alter that gift the device to use would be a Deed of Variation. However, the device used to operate a discretionary trust is generally a Deed of Appointment. It is very easy to get a Deed of Appointment wrong and very expensive to put it right afterwards. As you are tax qualified I think you yourself can instruct a barrister that is experienced in this kind of work. I would suggest that you look a few up on the internet and call a few for quotes

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Whilst the immediate interest belongs to the spouse, I would have thought that the trustees should have power under the discretionary trusts to appoint absolute interests now, potentially enabling the beneficiaries together to vary the terms of the trust [obviously depending on the precise terms of the will].
However, who are the executors/trustees? Presumably not the family …
An early [ie pre-probate] approach to the solicitors/executors may be helpful, particularly if doubts can be raised about their conduct when drafting the will.
For solicitors in your area I suggest you check The Association of Contentious Trust and Probate Specialists (ACTAPS) - ACTAPS

Hi @Charteredtax we are dealing with the same issue Re Discretionary Trust and would like to either instruct a Deed of Variation or somehow just pass it all to the Surviving Spouse.

Did you conclude it and / or did you find a solicitor that was knowledgeable about these complexities and helped you navigate it please?

Thanks
Glen

Hi Glen,

Many thanks for this.

The matter was resolved in the end as my mother-in-law simply opted not to amend the wills. Following her death, the discretionary trusts will simply be terminated by deeds of appointment transferring the property interests to her son and daughter respectively.

I’m sorry I can’t be of more assistance to you.

Best wishes,

Mark

Glen…seems you haven’t taken legal advice on this, I may be wrong. Doing so will mean all options are explored in full. There may be very good reason to retain the trust, or modify it, rather than passing all assets to the survivor. There may not be, so transfer (appointing out) is the right option.

What you need is a Deed of Appointment, not a Deed of Variation.