Survivorship Clause problem

Hi, I’d be grateful for any help on the following:

Husband and Wife have very basic mirror Wills leaving everything to eachother but with no giftover provisions. Both Wills include 28 day survivorship clause. Husband dies within 28 days of Wife. Without the TNRB there will be IHT payable.

Can the son (as sole beneficiary on the intestacy) do a Deed of Variation to mother’s estate by substituting her Will with one that doesn’t include the survivorship clause leaving the estate to her husband and therefore making the TNRB available to his estate?

Any thoughts welcome.

Many thanks

Paula Tedder

The usual problem with survivorship clauses is when the estate of the first person to die exceeds the nil-rate band, and the estate of the second person to die does not contain enough value to use up his or her nil rate band. That is not quite the same as what you appear to be referring to and so a variation may therefore be unnecessary. Since the wife died first, her nil rate band will pass to her husband, to the extent it is unused.

There is a rule that a variation must be capable of taking effect ‘in reality’ at the date the variation is made so I don’t think the will can be varied in favour of someone who has died.

Paul Davies

Regarding Paul’s last sentence there is I believe no problem in the son executing a DoV re his mother’s estate in favour of his father even though at the date of the DoV his father has died. However, a DoV could not be executed by a beneficiary of father’s estate in favour of his mother (as she had predeceased the father).

Malcolm Finney