Is an undated Deed of Variation valid? I have come across this on a matter I am currently working on and the Deed is undated, does this invalidate the document as it cannot be determined whether is was signed within the two years from date of death?
The fact that a deed is undated does not mean it is invalid as a deed, provided it was intended to take effect by the parties, and was not executed by them on the understanding that it would become valid at a later date, for example conditional on an event taking place. So the deed itself may be valid.
Whether the reading back provisions for IHT and CGT are effective is a separate question, because it is perfectly possible for a document which is called a deed of variation to be a valid deed even though it is signed more than 2 years after the date of death. With regard to that question, therefore, you do need to establish that it was completed within the 2 year period, but you still don’t need to know the exact date on which it was signed. Sometimes there is correspondence on a file which will show when the deed was sent out and by which date it was returned signed, even if not the actual date of return.
Thank you Diana for your very helpful reply. I thought as much but was unsure.
IHTA 1984 s 142 only requires an “instrument in writing” ie a “deed” is not strictly necessary (although typically used). Indeed HMRC will accept a letter assuming the s142 conditions are satisfied.
Thus, if the document executed fails as a deed this does not mean that s142 cannot be satisfied.
Failure to date the document executed does not cause it to fail to qualify as a deed if all the other conditions are satisfied (LPA(MP) Act 1989 s1). Normally, an unconditional deed takes effect immediately where it specifies that it is signed and delivered as a deed.
The issue appears to be more one of proof that the document executed (deed or not) was executed/signed “within the period of two” years of death.
Maybe correspondence exists between the parties which may help.
Malcolm Finney
Yes, I agree with the previous replies that the key is proving signed within two year of death. Dated correspondence relating to the deed from when it was signed look like the best route for proof.
David.