Changing A Will After Death Using A Deed of Variation

Posted by David Cammack on 14th August 2018

Can a will be changed after death? The answer is a simple ‘yes’. Changing a will after death is straightforward and can be done using a deed of variation of a will.

changing a will after death header imageA deed is the formal name given to a legal document that must be signed in the presence of a witness in order to be legally binding, but essentially is just a legally-binding document.

A deed of variation enables a will to be varied, after the death of the person whose will it is, by any beneficiary that is entitled to all, or part, of the deceased’s estate under the terms of the will.

Who Signs The Deed of Variation?

When changing a will after death, the deed of variation that is used must be signed by all beneficiaries that are affected by the change, in order for it to be valid.

There are many articles on the Internet that state that all beneficiaries who have been left something under the terms of the will must agree and must sign the deed of variation, and/or that the executors must also sign the deed of variation. These are not correct, as the legal position is that only the beneficiaries that are affected by the change need to sign.

One complication that can arise is that if any of the beneficiaries that are affected by the intended change (i.e. who are giving up an inheritance or part of it) are under 18 years of age, then you will need to apply to the court for permission, in order to make it binding on them. In practice this is usually rare.

Can an Executor Change a Will?

The executors under a will cannot change the will after the person that created the will has died without all of the beneficiaries that are affected by the change agreeing. As we mention above, the deed of variation must be signed by all beneficiaries affected by change.

Ideally the executors of the will should consult with all the affected beneficiaries to avoid any risk of a subsequent dispute, but legally the will can be validly changed provided that the beneficiaries who will be affected agree.

Time Limit For Changing a Will

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A deed of variation can be put in place either before or after obtaining probate, but it must be done within two years of the date that the deceased passed away. (If changing a will after death is attempted later, it will be invalid: you gain no Inheritance Tax benefits and it would be treated as a lifetime gift by the person who was originally due to inherit.)

Why Change a Will After Death?

There are many reasons why the beneficiaries under a will may want to change the terms of the will after the death of the deceased. Common reasons include:

  • To add in a family member that has been born since the will was created. Where a will was put in place a number of years before the deceased passed away, it is quite possible that some recently-born family members may not have been included in the will. In this situation, family members who are beneficiaries under the will may choose to vary the terms of the will to allocate some of the estate left to them to another family member.
  • Balancing up bequests made under the will. The deceased may have chosen to make certain bequests under the will that the beneficiaries do not consider to be fair. Provided that all of the beneficiaries affected agree, then the bequests can be varied in the manner/proportions that they agree.
  • To resolve a dispute under the terms of the will. Unfortunately it is not uncommon for family members to complain that the terms of a will are not fair, or that they have been left out of the will. In situations where the beneficiaries agree to change the will to resolve the dispute, then the deed of variation should be used. This can often avoid a claim under the Provision for Family and Dependants Act 1975.
  • To achieve a more tax-efficient distribution of assets. In some situations the will may not allocate assets in a way that minimises liability to Inheritance Tax and maximises Capital Gains Tax allowances. In such circumstances, the beneficiaries under the will may agree a variation to achieve a more tax-efficient position. Sometimes this involves gifting part of the estate to charity, in order to avoid Inheritance Tax on it.

Legal Requirements For Changing A Will After Death

For the deed of variation to be valid, it is essential that you bear in mind the following requirements.

  1. The deed of variation must be in writing in the form of a ‘deed’. As mentioned above, this means that everyone signing the will (the beneficiaries affected by the change) must each sign the deed in the presence of a witness. Each witness should be someone that is independent and not a family member of any signatory or another beneficiary under the will that is being changed.
  2. The wording must be clear so that the full identity of the new beneficiary is given. This should include their full name and their address.
  3. The deed making the change to the will must be completed within two years of the death of the deceased, as we mention above.

The Government has published a checklist form that you can use to check that the variation will be legally valid. The form is Form IOV2.

A further point to bear in mind is that if the change to the will results in more Inheritance Tax becoming payable, then the executors must notify HM Revenue and Customs within six months of the date of the deed of variation, and send HMRC a copy of the deed.

So, as you can see, the requirements for the deed to change the will after death are relatively straightforward. Now you know what to do, if you need a template for a deed of variation for a will, you can find ours here. Our deed of variation template has been drafted by a solicitor to ensure accuracy, and is much more cost-effective than hiring a solicitor to create one for you.

More information on changing a will after death can be found on the government’s website.