Varying the terms of a Will

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Can a Will be varied? North Devon based Probate Solicitor, Emily Hockin, looks at the variation of Wills

A person can make a Will to reflect their wishes and who they would like to benefit from their estate. However, in practical terms, the person benefiting from the estate could end up being disadvantaged by the terms of the Will. This is where a Deed of Variation can sometimes help.

If, for instance, the beneficiary’s own estate is increased dramatically due to an inheritance, the terms of the original Will could be varied. For a variation to be effective it needs to take placer within two years of the death. More importantly, all the Executors and Beneficiaries will need to agree that the variation can take place. If they cannot all agree, the Deed of Variation shall not be valid.

Generally speaking, Deeds of Variation are used to avoid Inheritance Tax and Capital Gains Tax. If this is the case, it can usually be agreed between the parties that it is the best course of action to take.

Another example where a variation might assist is where a parent leaves their estate equally between their children. The children may well be wealthy in their own right and would not want to benefit from the estate as it would simply increase the potential Inheritance Tax (IHT) liability upon their own death. If this is the case, and it can be agreed, then the deceased’s grandchildren could benefit instead, therefore bypassing the children altogether. However, if the grandchildren are under the age of 18, the Court would need to approve such an arrangement.

Other reasons for varying a Will may be to balance bequests if, for example, one child was left a smaller percentage than another. If it can be agreed, the percentages can be equalised in a Deed of Variation. It can also be used if one child is poorer than the other and would benefit more from having a larger share.

There is no need to register the Deed of Variation. As the Deed is essentially outlining an agreement between all involved parties, signing it shall ensure it is legally binding; there is no recourse to any party in doing this. The only pitfalls that you must avoid are that no one must be compensated for what they have given up and that none of the original assets were affected by a Gift with Reservation.

Emily Hockin is based at Slee Blackwell’s Braunton office where she specialises in estate administration and will preparation. You can call Emily on 0808 139 1606.