Deed of Variation executed by Attorney

relaxtwotribes · 24 July 2014 at 4:46PM

Please would anyone be able to tell me if a Deed of Variation (of a will) is capable of being executed by the Attorney of a beneficiary?

As in:

Brother A has made a will making a substantial bequest to Sister B. Sister B has been aware of this for many years and she already has assets of her own (the bequest is in excess of £325k and she has her own assets of more than £650k).

Sister B is widowed and has no need of any more assets. She would rather that brother B had made the bequest to her children (3) instead, but feels it is not for her to dictate such a matter to her brother. Indeed, Brother A's will gives the bequest to the 3 children in the event that Sister B predeceases him.
Could Sister B execute a Lasting Power of Attorney now which gives the attorney the power to enter into a Deed of Variation of Brother A's will after his death AND Sister B has lost mental capacity before his death? This seems to be counter-intuitive for the reason that an attorney has to act in the grantor's best interests at all times, but I wonder if there is a document that Sister B could sign authorising the attorney to execute a DoV and absolving the attorney. If there is, then I assume that the attorney could not be one of the children.

xylophone · 24 July 2014 at 5:41PM

https://www.justice.gov.uk/protecting-the-vulnerable/official-solicitor/court-of-protection-financial-cases
might be of relevance?

nidO · 24 July 2014 at 6:55PM

IANAL but my other half is, and she's told me that:

This is do-able but when drawing up the LPA Sister B will need to fill in the section on wishes detailing that in the event that a legacy is left by Brother A it should be varied and passed on to the sister's children. Apparently the more detail here on the potential gift that may be coming the sister's way and what should happen to it, the better.

With this in place, the Attorney still cannot vary the legacy themselves directly because a £325k gift is far in excess of what is reasonable for an Attorney to make but if the situation does arise they can then make an application to the court of protection to make the gift - When this goes before the court, any wishes outlined in the LPA will be considered very strongly, so if the wishes documented here accurately describe what the Attorney is applying to the court to do, the court should approve the gift.

There are potential snagging points though in that if the sister has lost capacity when all this happens it is quite possible they'll be in care, in which case the whole issue of deprivation of assets comes in, which may prevent the gift (the variation) from being made.

For this process, apparently the attorney being one of the children is not a major issue as when it goes in front of a court the wishes documented on the LPA will be the primary consideration, rather than the fact that the attorney making the application is one of the people to benefit.

You (sister

should probably get proper legal advice on achieving this, however.

Savvy_Sue · 24 July 2014 at 11:48PM

IANAL either, which is why the blindingly obvious solution from where I'm sitting would seem to be for Sister to say to Brother "Hey bro, if your will still leaves everything to me, had you thought about leaving it to my children instead?"

SeniorSam · 25 July 2014 at 10:30PM

I was under the impression that a Deed of Variation cannot be considred unless all beneficiaries are in agreement, but a minor cannot make such a decission. This may therefore be a problem.

Savvy Sue has the right approach. Just let A know that sister B does not wasnt or need the inheriotance and hope that the brother will make the requested changes to hisWill.

Sam

getmore4less · 25 July 2014 at 11:00PM

SeniorSam wrote: »

I was under the impression that a Deed of Variation cannot be considred unless all beneficiaries are in agreement, but a minor cannot make such a decission. This may therefore be a problem.

Savvy Sue has the right approach. Just let A know that sister B does not wasnt or need the inheriotance and hope that the brother will make the requested changes to hisWill.

Sam

I think just those disadvantaged need to agree.

Agree get the will changed.

She could also start giving away her own assets to get them under the nil rate band.

Some serious interfamily IHT planning is needed.

Savvy_Sue · 25 July 2014 at 11:56PM

SeniorSam wrote: »

I was under the impression that a Deed of Variation cannot be considred unless all beneficiaries are in agreement, but a minor cannot make such a decission. This may therefore be a problem.

I used to think the same, but apparently not, can't quote chapter and verse but it makes sense that only those affected by the change need to agree. You are right, however, that a minor who would be disadvantaged by a Deed of Variation cannot agree to the change, nor can anyone agree on their behalf.

getmore4less wrote: »

She could also start giving away her own assets to get them under the nil rate band.

Some serious interfamily IHT planning is needed.

That's another possibility.

getmore4less · 26 July 2014 at 6:52AM

Not clear we are dealing with minors but by the time comes things will have probably changed.

One issue is the joint assets already exceed the nil rate bands of the 3 children, if they have their own assets they may not want/need the inheritance and their may be other options like skip to another generation.

jimmo · 26 July 2014 at 10:23PM

Savvy_Sue wrote: »

I used to think the same, but apparently not, can't quote chapter and verse.

http://www.hmrc.gov.uk/cto/customerguide/page21.htm

SeniorSam · 27 July 2014 at 6:33PM

The most sensible way would be to creat Discretionary Trust or Trusts. That way, the trustees can determine the most sensible and tax efficient way to use the capital.

Sam

Deed of Variation executed by Attorney

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