Wills aren’t set in stone – change them with a deed of variation

If all executors and beneficiaries of a deceased’s will agree, they can change who benefits. Ruth Jackson-Kirby explains how.

You might think that once a person dies their will is set in stone. In fact, it is possible to change someone’s will once they are deceased, and it is becoming increasingly common. 

Families are using a legal document known as a deed of variation to alter who benefits from a will, with the most common reason being to reduce inheritance tax bills and help younger generations.

“We have seen a jump in the number of families wanting a deed of variation in the past year,” Paul Campion, a chartered financial planner at Succession Wealth, told The Mail on Sunday. “This is due to an increase in unexpected deaths of older family members” owing to the pandemic.

“The deceased often haven’t had time to check that their will still reflects their wishes and the needs of their family. As a result, their family sometimes chooses to distribute assets in a different way to that set out in the will.” 

A deed of variation doesn’t give anyone a free hand to do what they like with someone’s will; this is not your chance to eliminate your siblings from an inheritance. In order to be valid, the deed of variation has to be written within two years of the death and, more importantly, the deed must be signed by all the executors and beneficiaries of the estate. If everyone isn’t agreed on the amendments the will cannot be changed.

One of the most common reasons for using a deed of variation is to allow an estate to skip a generation. “People often inherit from their elderly parents when they are in their 50s and 60s,” Sarah Paton, a solicitor at Irwin Mitchell told The Mail on Sunday. 

“By that time, they are often financially comfortable, but they have children of their own who are more in need of support.” The parents could simply choose to pass what they have inherited straight onto their children without a deed of variation, but the risk is that “you could only do so tax-free if you live another seven years,” says Harry Brennan in The Daily Telegraph. Die within that time and the money could trigger an inheritance tax bill. With a deed that danger is averted.

There is no specific form you need to fill in for a deed of variation. You merely need to write a letter explaining the changes you want to make and keep it safe with the will and the “instrument of variation” checklist that you can find at Gov.uk. As long as the variation meets the government’s requirements in the checklist – which include being done within two years of death and being approved by all beneficiaries and executors – the changes can go ahead.

The only difficulty you may encounter is any of the beneficiaries of the will being under 18. In this case a deed of variation may not be possible as one of the beneficiaries is a minor and, therefore, unable to legally agree to the changes to the will. 

To ensure your deed of variation is legally binding you may want to get a solicitor to help draft it. Their charges will depend on how complex the changes are. Once the deed is written it then needs to be signed, witnessed and dated by all parties involved.

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