Q&As

Can a deed of variation be entered into before a grant of probate has been obtained? Is it possible to enter into a deed of variation in the case of a grant ad colligenda bona?

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Published on LexisPSL on 03/01/2018

The following Wills & Probate Q&A provides comprehensive and up to date legal information covering:

  • Can a deed of variation be entered into before a grant of probate has been obtained? Is it possible to enter into a deed of variation in the case of a grant ad colligenda bona?
  • Timing of variations
  • Grant ad colligenda bona (collection grant)
  • Deeds of variation requirements

It is not clear whether the Q&A refers to a grant of probate or a grant of administration'>letters of administration. For the purposes of this Q&A, we have assumed there is a Will and the reference is, therefore, to a grant of probate.

Timing of variations

Variations may be made before or after a grant of probate. The timing of a variation is important in order to obtain certain tax advantages (see below).

If a variation of a deceased person's dispositions is decided on which will reduce or eliminate the inheritance tax (IHT) liability of their estate on their death, it will be an advantage if it can be put into effect before the grant of probate, so that the lesser amount consequent on the variation having been made is payable on account when applying for the grant. An instrument of variation may be made before there is a grant of representation and before the estate has been administered. Although the right of a beneficiary who is interested in the unadministered estate of a deceased person does not amount to an equitable interest, they have a right to have the estate duly administered at their direction and make a disposition as in Re Leigh's Will Trusts, Handyside v Durbridge.

HMRC accept that instruments of variation may validly

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