If a Deed of Variation creates a trust (assuming s142 is satisfied), should the start date on TRS be the testators date of death or the date of execution of the deed of variation?
Where the conditions are satisfied the variation is treated as being made by the deceased and effective from death rather than being made by the original beneficiary.
The Settlor on TRS is I understand the original beneficiary if they were originally gifted an outright interest.
I am thinking about the 10 year charge, it would be odd if TRS has one date being the date of execution of the deed, yet for the purposes of the charge the relevant date of death was say 18 moths before?
s142 has no relevance for TRS. The commencement of a trust for IHT RPT charges and the 10 year anniversary dates are governed by IHTA 1984 and not by the TRS law. If the DoV creates the trust for TRS it is the date of the deed. If it directs property into a separate trust it will be the date that trust was “set up” (HMRC’s colloquial phrase) or if the property is the first property of that trust the date it is transferred to it.
HMRC’s view of who is the TRS settlor is set out at TRSM32040. As you say if the maker of the DoV is given an outright gift under the Will and is redirecting it into trust HMRC say he is the settlor and that seems right. If he redirects it into a trust “set up” by A N Other is the latter a settlor too? Is there an echo in here?