Deed of Variation on Deceased Estate

Trusts Discussion
1

Hi All,

I am dealing with a client, where his wife has deceased and left him the entire estate. He wishes to vary the wife’s estate to give a share of her interest into the main property to her daughter, the client’s step-daughter. He has no children of his own. The problem I am having is that the wife died sometime ago and we are nearing the 2 year time limit to vary the estate. Husband when making a new Will for himself, ripped and discarded a copy of his Will which he had at home and in avertedly also ripped up the copy of his wife’s will and discarded it. There are no other copies.

I am in the process of trying to find the original will, which wife did 13 years ago. I am conscious of the fact that the Will may not be located before the time limit for the variation to be done. If the Will cannot be located, can I vary the estate based on the knowledge that the Will was done, as we have the date when the Will was signed by wife, as husband also signed his Will and they both were Mirror Wills or do I vary the estate on the basis that his Wife’s estate would be an intestacy and the husband would be the main beneficiary under intestacy rules.

Your opinions would be much appreciated.

2

It is possible to frame a document by reference to a set of facts that are presently unknown but are ascertainable.

You have 2 alternatives, either the missing will is upheld by reference to evidence (A) or there is an intestacy (B). So the document can say essentially: if A then the Will is varied as follows and if B then the intestacy rules are varied as follows.

The necessary parties to each variation may be the same or different and if the latter two documents may be preferable.

The advantage here is that only A or B can be true and the dilemma is capable of resolution in a reasonably finite timescale.

Jack Harper

3

Was the wife’s estate not formally administered/Will registered?

4

No the estate was not administered. All accounts were held jointly and husband didn’t obtain probate for wife. Wife’s interest in the Property can still be transferred without probate, I am in the process of trying to obtain original will, if it can located in time. I have only 3 weeks remaining before deed of variation cannot be done as I will be over the time limit.