Deceased left residuary estate to be divided between his daughter (90%) and granddaughter (10%). Daughter executed a Deed of Variation to increase the share passing to the granddaughter The DOV incorporated a substituted Will showing the new split between daughter (67%) and granddaughter (33%). The daughter now wishes to redirect further assets from her inheritance for the benefit of great-grandchildren by executing a further Deed of Variation. I am wondering whether the effect of the substituted Will is to have varied the whole estate (so no further variation is possible) or whether it is just considered to have redirected part of the daughter’s original entitlement so a second DOV can now be executed? [It is probably the existence of the substituted Will that is causing me concern].
The daughter can still vary the 67% of the estate that she has retained.
I have always advocated that a variation should do no more than is necessary to effect the desired gift. The use of a “substituted will” causes many issues, not least that identified in this instance.
If the variation had merely stated that the dispositions of the estate were to be varied so that the daughter received 67% and the granddaughter 33% instead of the proportions stated in the will, the ability to make a second variation would have been more obvious. I suggest that the second variation include the effect of the first variation within the recitals and further vary the dispositions to the effect that out of her 67% retained by the daughter x% is given to the great grandchildren. If the great grandchildren are minors, consideration might also be given to including within the variation the terms of the trust upon which their benefit is to be held.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thanks for your advice Paul.
I totally agree about the “substituted Wlll” approach. It seems quite common these days.