Most people assume that a Will becomes completely fixed when the person who made it dies. In one important sense, that is true: nobody can go back and ask the person to sign a new Will.

However, the people due to inherit may sometimes agree to redirect all or part of their inheritance. This is commonly done through a Deed of Variation.

A variation might be considered when somebody has been left out, when an adult child would prefer their inheritance to pass to the next generation, or when the original gifts no longer suit the family’s circumstances. It may also form part of wider tax or trust planning.

So, can you change a Will after death? The short answer is that the Will itself is not rewritten, but its effect can sometimes be changed—with the agreement of the people whose inheritance is affected.

The original Will remains in place

A Deed of Variation does not replace the deceased person’s Will or pretend that they signed something different. Instead, it records a beneficiary’s decision to redirect some or all of what they were due to receive.

The same principle can apply when somebody dies without a valid Will. In that situation, the intestacy rules decide who inherits, but a person entitled under those rules may still be able to vary their share.

Despite the name, the document does not always have to be a formal deed. A written variation can be effective if it meets the necessary conditions. However, the wording and tax consequences matter, so relying on an informal family note could create uncertainty later.

Why might a family use a Deed of Variation?

Families consider variations for many different reasons. It is not always about reducing tax, and there is no requirement for every variation to benefit the whole family equally.

A variation might be used to:

• provide for a relative, friend or dependant who received little or nothing;
• pass an inheritance directly to children or grandchildren;
• redirect a gift to a charity that mattered to the deceased;
• place certain assets into an appropriate trust;
• correct an imbalance created by changes in family circumstances; or
• support careful Inheritance Tax or Capital Gains Tax planning.

A tax saving is never automatic. The result depends on the estate, the asset being redirected and the beneficiary’s own circumstances. A proposed variation should therefore be reviewed as a whole rather than treated as a simple tax shortcut.

Who needs to agree?

An executor cannot simply decide to distribute the estate differently. The people whose inheritance would be reduced or redirected must agree to the change.

That does not necessarily mean every beneficiary named in the Will has to sign. If one person is redirecting part of their own entitlement and nobody else’s share is affected, the other beneficiaries may not need to approve that decision.

A variation cannot be forced on somebody who would be worse off. If the affected person does not agree, their original entitlement normally remains. The position is also more complicated if a beneficiary is under 18 or cannot make the decision themselves, so specialist advice should be obtained at an early stage.

The two-year deadline matters

For a variation to receive the special treatment available for Inheritance Tax and Capital Gains Tax, it will normally need to be completed in writing within two years of the death and contain the correct tax statements.

When the conditions are met, the redirected inheritance can generally be treated for those taxes as though the deceased had left it to the new recipient. That can be very different from the original beneficiary receiving the asset and then making a personal gift.

This does not mean that nothing can ever be transferred after the two-year period. A beneficiary may still be able to give away their own money or assets, but it would usually be considered their gift and could have different tax consequences. Waiting until probate is complete may also use up valuable time, so an intended variation should be discussed promptly.

A simple example

Imagine a mother leaves her estate equally to her two adult children. One child is financially secure and would prefer £30,000 of their share to pass directly to their own children.

A properly prepared Deed of Variation may allow that £30,000 to be redirected to the grandchildren. The original Will still exists, but the variation changes where that part of the inheritance goes. If the relevant tax conditions are satisfied, it may be treated as a gift from the grandmother rather than from her adult child.

Before signing, the family should consider the age of the grandchildren, whether a trust would be appropriate, the effect on the estate’s tax position and whether the beneficiary might need the money later. Once completed, a variation can be difficult to undo.

A variation is not the same as challenging a Will

A Deed of Variation is based on agreement. It is different from disputing the validity of a Will or bringing a claim because somebody believes reasonable financial provision was not made for them.

If there is conflict, concern about undue influence, doubt over the deceased’s capacity or a potential claim against the estate, contentious probate advice may be required. A voluntary variation should not be used to disguise a dispute that has not been resolved.

Get advice before the estate is distributed

The best time to explore a Deed of Variation is before the relevant inheritance has been distributed and well before the two-year tax deadline. This allows the beneficiaries, executors and advisers to understand what is proposed and identify any legal or tax issues.

At Westfield Wills, we can help you consider how a proposed change fits with your family’s wider estate-planning objectives and guide you towards the appropriate next steps. To discuss your circumstances, call 01756 540 541, email support@westfieldwills.co.uk or contact Westfield Wills.

Important information: This article provides general information about England and Wales and does not constitute legal or tax advice. Deeds of Variation and estate-tax treatment depend on individual circumstances. Professional advice should be obtained before signing a variation or distributing the estate.

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