Q&As

Where a deceased individual included a nil rate band discretionary trust in their Will, can a Deed of Variation be used to insert wording to state that the discretionary trust should only take effect if their spouse survives them?

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Published on LexisPSL on 25/01/2021

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

  • Where a deceased individual included a nil rate band discretionary trust in their Will, can a Deed of Variation be used to insert wording to state that the discretionary trust should only take effect if their spouse survives them?
  • Deed of variation
  • Appointment under IHTA 1984, s 144

It is assumed that:

  1. under the Will trust, the surviving spouse had no absolute current right to direct the trustees to pay the spouse an ascertainable part of the net income or capita of the trust

  2. the surviving spouse was not the sole beneficiary of the Will trust

Deed of variation

A disposition into a trust can only be varied if all the living beneficiaries are of full age and capacity and join together to consent. In the case of a discretionary trust, this

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