Deed of variation drafting

Question 1

When will you need one

Answer 1

For a post-death variation

Question 2

Structure

Answer 2

1) Heading
2) Parties
3) Supplemental
4) Recitals
5) Variation of the will/intestacy and receipt clause
6) Executor’s/Administrator’s undertaking to administer the estate in accordance with the variation made by this Deed
7) Writing/reading back statement and the provisions of the Inheritance Tax Act
8) Execution

Question 3

Heading

Answer 3

THIS DEED OF VARIATION is made this [NUMBER] day of [MONTH] [YEAR]

Question 4

Parties

Answer 4

(1) [NAME] of [ADDRESS] (the [Original/[Statutory Beneficiary/ies)
(2) [NAME] of [ADDRESS] (the New Beneficiary/ies)
(3) [NAME] of [ADDRESS] (the Executor/s/the Administrator/s)
If someone if varying their entitlement under the will they need to be added e.g original beneficiary
A new beneficiary needs to be added if they are to accept the variation. If they are a minor they will not be a party. If a person is merely receiving a gift then they don’t need to be a part.

Question 5

Supplemental - Will

Answer 5

SUPPLEMENTAL to the will dated [date] (the Will) of [name of testator/testatrix] late of [address] (the Testator/Testatrix) who died on [date] probate of the Will having been granted out of the [Principal OR [name] District Probate] Registry of the Family Division of the High Court to the Executors on [date]

Question 6

Supplemental - Intestacy

Answer 6

SUPPLEMENTAL to the intestacy of [name of intestate] late of [address] (the Intestate) who died on [date] leaving the Statutory Beneficiaries the only statutory beneficiaries entitled to their estate on intestacy, letters of administration to the estate of the Intestate were granted to the Administrators out of the [Principal OR [name] District Probate] Registry of the Family Division of the High Court to the Executors on [date]

Question 7

Recitals

Answer 7

This will typically include:
(a) the entitlement of the Original or Statutory Beneficiary under the Will or the Intestacy of the deceased;
(b) the wish of the Original or Statutory Beneficiary to vary the provisions of the Will or the Intestacy in the manner stated in the operative part of this variation; and
(c) any other relevant background.
Need to address these three sections for each change

Question 8

Recitals - Example purpose of gift to charity has failed

Answer 8

1. In respect of [clause 4] of the Will
   1.1 The Testator left her property [HOUSE AND ADDRESS] (the Property) to the Charity upon trust for the sole purpose of providing sheltered accommodation for homeless people.
   1.2 The Charity has been advised that the Property is unsuitable for use for that purpose as it cannot be adapted to meet government health and safety standards. Therefore the purpose has failed ab initio.
   1.3 The Original Beneficiary wishes to honour the Testator’s intention to benefit the Charity and vary the Will in the manner as set out in this Deed.
   1.4 The terms of this Deed have been approved by the Charity Commissioners for England and Wales.

Question 9

Recitals - Example original/statutory beneficiary wants to insert an additional legacy

Answer 9

1. By [clause 6] of her Will the Testator left her residuary estate to the Original/Statutory Beneficiary.
   1.1 The Original Beneficiary wishes to insert in the Will an additional legacy in the manner as set out in this Deed.

Question 10

Variation of the will/intestacy

Answer 10

Need to state how the will is going to be varied. Need a clause for each variation/change.
E.g ‘Variation of the Will in favour of [ADDITIONAL BENEFICIARY]
Also need to state who can obtain receipt for this

Question 11

Variation of the will/intestacy - Example

Answer 11

THIS DEED PROVIDES:
1. Variation of the Will in favour of an additional beneficiary
1.1 The Will shall be varied and read as if the Testator had included in the Will a legacy of £10,000 free of tax to [NAME] of [ADDRESS]
1.2 If my Executors obtain a receipt for this legacy from the parent or guardian of [NAME] whilst she is still a minor they have no further duties relating to the payment.

Question 12

Executor’s undertaking

Answer 12

The Executors undertake to administer the estate in accordance with the variations made by this Deed.

Question 13

Writing back

Answer 13

The provisions of the Inheritance Tax Act 1984 Section 142(1) and of the Taxation of Chargeable Gains Act 1992 Section 62(6) shall apply to the variations effected by this Deed.

Question 14

Execution

Answer 14

Signed as a deed by the Original Beneficiary in the presence of:

Signed as a deed by the Executors in the presence of:

Signed as a deed by the Additional Beneficiary in the presence of: