Deed of Variation

Trusts Discussion
1

The deceased’s family wish to vary the will of their wife/mother. Rather than the children take a gifts of “up to the nil rate band” they wish to give the husband a life interest and then everything passes to the children on the second death. There are lost of reasons for this. In either case no inheritance tax is due.

Probate has not been applied for as yet. Is it possible to prove a varied will or do we need to prove the will as is.

Any help most appreciated

Collette Hodkinson
CPH Solicitors

2

You can draw up the DOV before probate has been obtained. That has no effect on the probate application which proceeds as normal. The DOV is just a rearrangement of the dispositions in the will for IHT purposes. The Probate Registry are not interested in it.

Mrs J E Bennell
RLK SOLICITORS LTD

3

A deed of variation cannot very the will of a deceased person, only a
court of law may do that.

The variation will vary the dispositions of the estate, meaning the
beneficiaries will be making gifts of when they are given by the will.

There is no reason a pre-grant variation cannot be made. A copy of the
variation will need to support the IHT400 to justify the claim for
spouse exemption.

In order to vary the destination of the NRB gift, it is important that
the class of beneficiaries under the will are all adult, and that minors
and unborn are not included within the class.

Paul Saunders

4

A DoV does not vary a will. A DoV merely changes the manner in which dispositions under a will are varied. In essence, the beneficiary inheriting under the will is making a lifetime gift.

A DoV creates a fiction for CGT and IHT.

It is the will executed by the testator which needs to be probated.

Malcolm Finney

5

Its not clear what the will currently says, but it sounds like there is a NRB gift to the children and then presumably residue to the husband/father?

  1. D of V - If the above is correct, then the only way those children can vary that is if they are the ONLY beneficiaries - ie, it’s not “my children and remoter issue” in which case it would not be possible without the approval of the Courts.
  2. The proving of the Will does not change as it is not the ‘Will’ that is being varied, just the beneficial interests(s), so that process/procedure does not change.

Kamlesh Samji
KRS Estate Planning

6

Not a solicitor but surely you cannot vary a Will after the Testator has died?
Perhaps you mean a Deed of Variation, which is a tax fiction that purports to read back, as though it had been in the Will, changes to beneficiaries and their entitlements (for IHT and CGT but not income tax). I would imagine that you need to prove the Will as it was at death and then organise the Deed of Variation. As there is no IHT under either scenario HMRC should not have any issue with this (provided any income arising is reported correctly).

Maxine Higgins
Citroen Wells