Q&As

Can you execute a Deed of Variation in an estate to benefit an individual who was not alive at the date of death of the testator?

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Published on LexisPSL on 24/12/2020

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • Can you execute a Deed of Variation in an estate to benefit an individual who was not alive at the date of death of the testator?

Can you execute a Deed of Variation in an estate to benefit an individual who was not alive at the date of death of the testator?

Section 142(1) of the Inheritance Tax Act 1984 (IHTA 1984) provides that, assuming that the instrument of variation complies with all the formal requirements, IHTA 1984 '…shall apply as if the variation had been effected by the deceased'. Therefore, the variation is treated for inheritance tax (IHT) purposes as taking effect on the death of the deceased person.

If the intended recipient (the 'new legatee') of the transfer by the original legatee is alive at the date of the transfer but was not alive at the death of the deceased, it is difficult to see how IHTA 1984, s 142 could apply to that transfer, because, if IHTA 1984, s 142 were to apply, the subject matter of the variation would completely fall outside the scope of IHT for the period between the deceased's death and the birth of the new legatee. It would not be within the estate of the original legatee and it

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