I am seeking assistance in a matter where I have been instructed by the nephews of an intestate aunt.
The aunt died last May and was survived by my clients’ father ( sole beneficiary on intestacy) who died a few months later leaving a Will appointing his partner and thereafter solicitors as executors and leaving his residuary estate to his partner. The partner is therefore entitled to take take out letters of administration and benefit from the proceeds of the aunt’s estate but has stated she wishes this to pass to my clients and for them to deal with the aunt’s estate. Had my clients’ father not survived the aunt they would have been next entitled on her intestacy.
Solicitors instructed by the partner in relation to the father’s estate have prepared a Deed of Variation signed by the aunt which includes a Notional Will appointing my clients as executors and leaving the aunt’s estate to them.
My understanding is that the appointment of executors in the Deed is invalid but the variation of the entitlement to the aunt’s estate is valid. I am unsure if this will be sufficient for my clients to apply to the Registry or whether a Deed of Disclaimer from the partner would be required and in addition if the Deed of Variation is to be relied on then if any renunciation of the right to apply for administration in the aunt’s estate is also required from the partner and solicitors as executor and substitute of the father’s Will?
I am not sure that a renunciation of right to take out a grant would help, if the deed of variation has already been executed by the partner.
The deed of variation is effectively a deed of gift with an IHT (and/or CGT) write-back for tax purposes only (assuming the partner’s solicitors have included the relevant write-back provision(s)).
If the partner has already executed the deed of variation, I believe that it may no longer be possible for her to disclaim her right to inherit as she has already accepted her entitlement by gifting it on to the son, in the deed of variation.
It may be that the only option for the son to take out the grant would be for the partner to appoint him as her attorney for the administration (which would of course tie her in).
I have not double-checked any of this with reference to NCPR etc, and so please do not take this as gospel/certain!
You may want to consider making a pre-lodgement enquiry to HMCTS with an application on the basis of what you have. They should tell you what will be required if you do that. However, off the top of my head, I think the DoV might cause issues for order of priority to take out a grant if it’s already been executed (as explained above).
I think in this situation I’d try an application under S116 SCA 1981 for the nephews to take out the grant, backed up by an affidavit setting out the background and annexing a copy of the signed deed of variation. In the “good old days” I’d have sent the papers in draft to the Probate Registry for settling first, but I don’t know how long that’s likely to add to the process given the current delays.