There's More Than One Way To Change A Will1st Dec 2020
Changing A Will After Death
It is possible to change someone’s will after they have died. This may seem odd – after all, what’s the point of making a will if it can be altered after you have passed away?
But there are often logical reasons, such as reducing Inheritance Tax and Capital Gains Tax so your beneficiaries receive more from your estate.
Other reasons include clarifying ambiguities. Or providing for someone inadvertently left out of the will. Or moving the deceased’s assets into a trust (which again has tax benefits).
It’s all about ensuring that what you drafted in your will is actually what you meant – and that those final wishes are carried out as you actually intended, benefiting your loved ones after you have gone.
Varying A Will (Deeds Of Variation)
A deed of variation enables you to make subtle changes to a will after someone has died. These documents are also known as a deed of family arrangement or a deed of disclaimer. Any changes must be made within two years of the date of death.
You can change only your share of the estate. And you can’t increase your share unless others agree to it. Nor can you change other people’s shares without their agreement; there could be legal issues if one of the beneficiaries doesn’t agree to the proposed changes – or if they are too young to give consent.
There are lots of other factors to consider including Stamp Duty (if stocks, shares or other securities are involved), Inheritance Tax, Capital Gains Tax and whether any bequests will be going to charity.
It pays to get expert legal advice before you vary a will. Trying to do it yourself by downloading an online form carries very real risks.
You may fail to capitalise on important tax reliefs. Or, conversely, you may inadvertently get a little over-enthusiastic about minimising your tax – incurring the wrath of HM Revenue & Customs.
Changing a will also risks triggering a legal dispute between the beneficiaries.
Last year saw a 47% leap in the number of contested wills cases going before the High Court (and this doesn’t include the number of cases settled in advance). Increases such as this over recent years have been attributed to rising house prices and ever-greater numbers of blended families.
Be warned: disputes over wills can be time-consuming, expensive and particularly stressful because they involve family members grieving over the loss of a loved one. Chatting with an experienced probate solicitor before you try to vary a will help you to avoid potential legal and family pitfalls.
Varying A Will Under The Mental Capacity Act 2005
Not all disputes over will variations end up in the High Court. A recent case (FSS v LMS  EWCOP 52) went before the Court of Protection because it involved a beneficiary with Sotos Syndrome (a rare genetic disorder that can result in learning disabilities) and a significant degree of Autism.
The 21-year-old woman was a beneficiary in a poorly drafted will that would have disqualified her from receiving various means-tested benefits. So her mother applied to vary the will to create a disabled person’s trust.
But the Official Solicitor opposed the application, saying that it would be a deliberate deprivation of capital – so the beneficiary would be ineligible to claim benefits.
The Court of Protection disagreed with the Official Solicitor and found in favour of the beneficiary.
Get Expert Legal Advice
Get expert legal advice on varying a will. Contact Coles Miller Partner Stuart Bradford, Head of the Probate Department. He is also one of just nine Court of Protection Panel Deputies in the South West and the only one in Dorset. He was appointed by the Office of the Public Guardian.