On the face of it, you would probably assume that the answer is no. How could it be fair to change a person’s last wishes? However, in some limited circumstances it may be possible to change a will after death.
Before we get into the details of when this may occur, let’s have a quick recap on some will terminology:
- Testator; the person that made the will
- Executor; the person tasked to carry out the instructions in the will
- Beneficiary; a person that benefits from a provision in the will
When could a will be changed?
In some cases, a will may be old and the testator’s personal circumstances may have changed. The testator’s family may have grown in the interim and it may be that the will did not cover this scenario.
Another reason that an executor may seek to change a will is that the entitlement under the will may cause tax issues for the beneficiary
An executor may be able to change the will by using a Deed of Variation. However, any beneficiary that may be affected by the proposed change will have to agree.
What do I need to know about the Deed of Variation?
A Deed of Variation must be made within two years of the date of death. It is recommended that you seek expert advice when considering a Deed of Variation. As an executor, you will be financially responsible for the outcome. If you make a mistake or the Deed of Variation causes unintended tax consequences, you could find that you owe money to HMRC.
When signed, a Deed of Variation is a legally binding document between the executor(s) and the beneficiaries. It is not necessary for the deed to be registered for it to be effective. An expert in this field will be able to advise if you should inform HMRC of the existence of the deed, based on the circumstances.
If the Deed involves any property, you may need to update the Land Registry.
Next steps.
If you are considering varying someone’s will or wish to know more about the implications of doing so, please contact the friendly private Client team on 01245 228125 or PrivateClientEnq@gepp.co.uk.
This is not legal advice; it is intended to provide information of general interest about current legal issues.
