Variation of Will or intestacy after death

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Variation of Will or intestacy after death
  • Variations and other post-death rearrangements
  • Inheritance tax
  • IHTA 1984, s 142 relief
  • Formalities for a variation
  • Instrument in writing
  • Property comprised in the deceased's estate
  • Variation made within two years of deceased’s death
  • Parties to the variation
  • Instrument contains a statement that IHTA 1984, s 142 is to apply
  • More...

Variation of Will or intestacy after death

Variations and other post-death rearrangements

Although the terms of a testator’s Will or the provisions applicable on intestacy cannot actually be altered by the beneficiaries of the estate, it is possible for those who would inherit under the Will or intestacy to enter into an instrument of variation (sometimes referred to as an instrument or deed of family arrangement) or other type of post-death rearrangement to alter the effect of the Will or intestacy. An original beneficiary can provide by way of a variation that any property that the operation of the Will or intestacy rules would otherwise give them instead passes to another person or persons.

Other common forms of post-death rearrangement include:

  1. disclaimers

  2. distributions pursuant to precatory trusts

  3. distributions from Will trusts

  4. claims under I(PFD)A 1975

The reason that the parties often choose to enter into a variation or other formal rearrangement after the testator’s death, rather than the original beneficiary simply giving away the asset as a lifetime gift, is that, subject to certain conditions, a variation and other types of post-death rearrangement can operate for tax purposes as though they were made by the deceased themselves. This can mitigate the risk of further inheritance tax becoming payable either immediately or if the original beneficiary does not survive for seven years which might otherwise be the case if

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