Deed of variation - possible to amend?

earlycomputers

Hi - can any solicitor out there tell me whether it's possible for a will deed of variation to be further amended? 6 years ago my father passed away leaving a will, which was subsequently amended using a deed of variation to allow his spouse to remain living in his property until her death. When I signed this deed of variation I had no knowledge of the implications of this deed which effectively wrote myself and my brother out of my father's estate (contrary to what he specified in the will). I was an idiot to sign it not fully understanding the implications. I want to amend this deed of variation to reflect better the terms of my father's original will but I don't believe his wife will sign to any proposed changes as she will be worse off than she is now. My question is: is it possible under any circumstances to revoke or amend a deed of variation? I am hoping my case will be based on the fact that no reasonable person would have sign it had they been in full knowledge of the obvious loss they would incur. Can I take his wife to court over this matter and let a court decide the outcome (I am pretty confident it will go in my favour)? thanks

SevenOfNine

You could ask on the Legal Beagles forum as well.
https://legalbeagles.info/forums/

You might have to add a little more info. Was this a DiY DoV & done within 2 years of the death (which is the time limit for a DoV)? Presumably you weren't a minor & of sound mind when signing (which would probably invalidate it if you were either)?

From what you've put so far it doesn't actually sound as if you've effectively signed away your inheritance altogether. Just that she's been given a life interest in the property, when she dies the original beneficiaries inherit it. That would happen regardless of what she might subsequently put in a Will of her own.

Tom99

earlycomputers wrote: »

Hi - can any solicitor out there tell me whether it's possible for a will deed of variation to be further amended? 6 years ago my father passed away leaving a will, which was subsequently amended using a deed of variation to allow his spouse to remain living in his property until her death. When I signed this deed of variation I had no knowledge of the implications of this deed which effectively wrote myself and my brother out of my father's estate (contrary to what he specified in the will). I was an idiot to sign it not fully understanding the implications. I want to amend this deed of variation to reflect better the terms of my father's original will but I don't believe his wife will sign to any proposed changes as she will be worse off than she is now. My question is: is it possible under any circumstances to revoke or amend a deed of variation? I am hoping my case will be based on the fact that no reasonable person would have sign it had they been in full knowledge of the obvious loss they would incur. Can I take his wife to court over this matter and let a court decide the outcome (I am pretty confident it will go in my favour)? thanks

You cannot go back and alter the terms you signed up to. By definition a deed of variation means a beneficiary giving up an inheritance they are entitled to for no consideration.

Mojisola

earlycomputers wrote: »

6 years ago my father passed away leaving a will, which was subsequently amended using a deed of variation to allow his spouse to remain living in his property until her death.

When I signed this deed of variation I had no knowledge of the implications of this deed which effectively wrote myself and my brother out of my father's estate

Do you want to copy the wording on here (leaving out identifying details) and see whether you have anything to worry about?

It doesn't sound as if you have given up your inheritance, just delayed it.

Voyager2002

earlycomputers wrote: »

I don't believe his wife will sign to any proposed changes as she will be worse off than she is now.

That rules out what you hope to achieve: one of the key points of a DoV is that it must be signed by the person who stands to lose from the variation.

earlycomputers

yes I was an adult when I signed it and of sound mind. My father wanted his wife to have a life interest in his property - which I am absolutely fine with, and then the flat to go 100% to myself and brother. The problem is that the deed of variation changed the ownership of his flat from being from myself and brother, to being hers 100% so that she could get an interest-only mortgage on the place as my father had a mortgage still on the flat. So I only want to change the part on the deed that states she is the 100% owner. The new Land Registry document for the flat also shows that she is the full owner, and myself/the wife/the executor/my brother are second charge on the flat. Whilst I appreciate the flat will pass to the second charge on his wife's death, my brother and I, because of this mortgage she has taken out and because she is now owner of the flat (contrary to the terms of the original will), will have to pay her back her mortgage plus a hefty capital gains tax. Had the will been left alone, then his wife could still have stayed living in the flat but my brother and I would be significantly better off financially. Other solutions could have been explored to see how the mortage could have been paid whilst she lives in the flat, but at the time, nothing other than this deed of variation was proposed. So my question is, on the assumption that she wont sign to any changes to this deed, can I get a court to change it? Can I do anything legally to effect a change of this variation?

Mojisola

earlycomputers wrote: »

I only want to change the part on the deed that states she is the 100% owner.

The new Land Registry document for the flat also shows that she is the full owner, and myself/the wife/the executor/my brother are second charge on the flat.

my brother and I, because of this mortgage she has taken out and because she is now owner of the flat (contrary to the terms of the original will), will have to pay her back her mortgage plus a hefty capital gains tax.

Why would you have to pay CGT?

Tom99

earlycomputers wrote: »

yes I was an adult when I signed it and of sound mind. My father wanted his wife to have a life interest in his property - which I am absolutely fine with, and then the flat to go 100% to myself and brother. The problem is that the deed of variation changed the ownership of his flat from being from myself and brother, to being hers 100% so that she could get an interest-only mortgage on the place as my father had a mortgage still on the flat. So I only want to change the part on the deed that states she is the 100% owner. The new Land Registry document for the flat also shows that she is the full owner, and myself/the wife/the executor/my brother are second charge on the flat. Whilst I appreciate the flat will pass to the second charge on his wife's death, my brother and I, because of this mortgage she has taken out and because she is now owner of the flat (contrary to the terms of the original will), will have to pay her back her mortgage plus a hefty capital gains tax. Had the will been left alone, then his wife could still have stayed living in the flat but my brother and I would be significantly better off financially. Other solutions could have been explored to see how the mortgage could have been paid whilst she lives in the flat, but at the time, nothing other than this deed of variation was proposed. So my question is, on the assumption that she wont sign to any changes to this deed, can I get a court to change it? Can I do anything legally to effect a change of this variation?

Any deed of variation will be contrary to the terms of the will. It was you who agreed to change the will. Did you receive your own legal advice at the time?

getmore4less

As your father had an outstanding mortgage you did not inherit 100% only the equity?

To own 100% you would have had to pay off the mortgage.

As the spouse took on the mortgage they should own that share and have a life interest in the equity share.

If the life interest was done right it actually reduced the CGT liability.

OR

are you saying the DOV was to give her the house with no life interest?

in that case who inherits when she dies?

If it is still you then there is no CGT.

Tom99

If you quote the exact wording of the will and deed of variation you may get some more useful replies. At the moment people are trying to guess what the deed might or might not have said.

earlycomputers

OK good point. So here is the specific excerpt about the property from my father's original will, along with the wording of the deed of variation below this (names redacted):

4 Gift of property on trust for life with remainder to others

4.1 If my and my wife's (redacted name) only or main residence as at the date of my death is at my property known as (redacted address) or such other property which I may own solely or jointly with any other person as my principal residence at that time (hereinafter called 'the Property') then I give my interest in the same free of tax together with all furniture soft furnishings and articles of domestic household or garden use or ornament in or about the Property ('the Contents') to my Trustees on the following trusts
4.2 In this clause 'the Property Fund' shall mean the Property and the Contents and all property from time to time representing the same
4.3 My Trustees shall hold the Property Fund for my intended wife (redacted name) ('the Life Tenant') for her life and after her death upon the same trusts as set out in clause 5 below concerning my Residuary Estate provided that this life interest shall cease and determine if for any reason father's wfe (name redacted) ceases to live for a period in excess of twelve months in the country where my principal residence was situated at the date of my death and I declare that in the event of doubt or dispute as to whether or not this qualification has been satisfied then my Trustees shall consult with both the Life Tenant and my residuary beneficiaries and following such consultation my Trustees shall make a ruling which shall be final and binding on both the Life Tenant and my residuary beneficiaries
4.4 My Trustees shall allow the Life Tenant to have the use of the Contents for so long as the Life Tenant wishes to use the same on condition that she keeps the same insured in the joint names of herself and my Trustees with an insurance company approved by my Trustees in such amount and against such risks as my Trustees shall determine and keep the Contents in good repair and condition (fair wear and tear excepted)
4.5 It is my wish that my Trustees shall in exercise of the powers conferred on them by the Trusts of Land and Appointment of Trustees Act 1996 Section 13 impose on the Life Tenant as a condition of her residence in the Property that she shall pay all outgoings in respect of the Property and shall keep the same in good repair and condition and insured in the joint names of herself and my Trustees with an insurance company approved by my Trustees in such sum and against such risks as my Trustees shall determine
4.6 While the Life Tenant has the use of the Contents and is in occupation of the Property my Trustees shall not be liable to see to the repair of either the Contents or the Property or for the effecting or keeping up of the insurance of either the Contents or the Property and shall not be liable for any loss or damage that may occur to either the Property or the Contents from any cause whatever
[FONT=&quot]4.7 No sale of the Property or Contents shall take place without the consent in writing of the Life Tenant but if at any time the Life Tenant so requests in writing my Trustees shall sell the Property and the Contents and shall apply the proceeds of sale (or the proceeds of sale of any other property substituted under this power) in the purchase of any freehold and leasehold property to be held on the like trusts as the trusts expressed in this clause in relation to the Property Fund provided that if no substitute property is purchased then the proceeds of sale of the Contents shall be applied to the trusts concerning my Residuary Estate[/FONT]
[FONT=&quot]4.8 [/FONT] All the powers and discretions given to my Trustees by this Will shall apply to the property Fund so far as they are capable of being exercised in relation to the Property Fund
[FONT=&quot]

[/FONT]
[FONT=&quot]4.9 All sums secured on the Property by way of mortgage together with all interest due at my death shall be paid out of the residue of my estate in[/FONT] exoneration of the Property except in so far as paid out of the proceeds of any policy of assurance given as security for the purpose
4.10 If at the date of my death I have contracted to sell the Property this gift shall take effect as a gift of a settled legacy of an amount equal to the net proceeds of sale which shall be held on the trusts of the Property Fund as set out in this clause




And here is the wording of the deed which replaces all of the above:


[FONT=&quot]“[/FONT][FONT=&quot]4.1 I charge my leasehold land known as my father's flat (address redacted) (the “Property”) with payment to my Trustees of a sum equating to 44.05% of the value of the Property as at the date of any sale or earlier redemption of the charge (the “Second Charge”) to hold the charge and the sum due thereunder when paid ON TRUST as set out in clause 4.2 below; and subject thereto and further subject to and charged with satisfaction of all debts secured on the Property by way of mortgage at my death, including any interest then outstanding, I give free of tax the Property to father's wife (name redacted) of father's flat (address redacted).[/FONT]

[FONT=&quot]4.2 My Trustees shall hold the Second Charge ON TRUST to pay out of the sum secured by the charge when realised to father's wife (name redacted) or her estate a sum equivalent to any interest she may by that date have paid on any debt secured on the Property at my death and on any Replacement Mortgage entered into in accordance with clause 4.3 below and subject thereto for the aforesaid father's wife (name redacted) for life PROVIDED THAT this life interest shall cease and determine if for any reason father'[s wife (name redacted) ceases to live for a period in excess of twelve months in the country where my principal residence was situated at the date of my death and I declare that in the event of doubt or dispute as to whether or not this qualification has been satisfied then my Trustees shall consult with both the Life Tenant and my Residuary Beneficiaries and following such consultation my Trustees shall make a ruling by majority vote which shall be final and binding on both the Life Tenant and my Residuary Beneficiaries AND SUBJECT TO THE AFORESAID LIFE INTEREST upon the trusts set out in clause 5 of this Will.[/FONT]
[FONT=&quot]4.3 My Trustees and the Residuary Beneficiaries shall consent to and join in to any Deed of Priority that may be required to give any new mortgage or charge securing a loan to the aforesaid father's wife (name redacted) (a “Replacement Mortgage”) priority over the Second Charge PROVIDED THAT[/FONT]
[FONT=&quot] 4.3.1 the capital sum secured by the Replacement Mortgage is no greater than £167,850;[/FONT]
[FONT=&quot] 4.3.2 the Trustees are satisfied that any pre-existing debts then secured on the Property and having priority to the Second Charge will forthwith thereupon be satisfied out of the monies raised by the Replacement Mortgage, and the mortgage or charge so securing them released, and are provided with such covenants and indemnities as they may reasonably consider necessary to ensure the same;[/FONT]
[FONT=&quot] 4.3.3 the terms of the new mortgage or charge do not impose any liability on the Trustees or the Residuary beneficiaries personally, and;[/FONT]
[FONT=&quot] 4.3.4 the aforesaid father's wife (name redacted) covenants with the Trustees for their benefit and that of the Residuary Beneficiaries that she will make all payments of interest due under the Replacement Mortgage as they fall due and will indemnify them for any loss to the value of the Second Charge that may be suffered through any failure of hers to make such interest payments or comply with any other term of the Replacement Mortgage.[/FONT]
[FONT=&quot]4.4 The Trustees shall have power in their absolute discretion to give all necessary consents and join in any necessary Deed to permit a Replacement Mortgage that does not comply with the terms set out in clauses 4.3.1 to 4.3.4 but shall be under no obligation to do the same.[/FONT]
[FONT=&quot]4.5 My Trustees shall not demand payment of the sum secured by the Second Charge or seek to enforce their charge without the consent of father's wife (name redacted) during her lifetime UNLESS she fails to make any interest payment due on the Property as it falls due.[/FONT]
[FONT=&quot]4.6 The sum secured by the Property Fund Charge shall be calculated as 44.05% of the proceeds of any sale after deduction of the costs and expenses of and occasioned by the sale but without deduction of any other sums secured on the Property. In the event father's wife (name redacted) wishes to redeem the charge by payment of the sum due thereunder without a sale of the Property actually taking place she shall be at liberty to do so at her sole and absolute discretion by serving a notice in writing on the Trustees of her desire to do so, and the Trustees and father's wife (name redacted) shall thereafter jointly instruct an expert valuer to assess the open market value and the sum payable to release the charge shall be 44.05% of that value less costs of the valuer and all other costs of and occasioned by the transaction but without deduction of any other sums secured on the Property. In the event of any disagreement over the mechanism for valuation or sale any of the Trustees or father's wife (name redacted) may apply to the Court for directions.[/FONT]
[FONT=&quot]4.7 For the avoidance of doubt, the proceeds of any policy of assurance payable to my estate on my death, whether originally given or intended as security for any mortgage debt secured on the Property at my death or not, shall not be applied to any debt secured on the Property but shall fall into my residuary estate. [/FONT]
[FONT=&quot]4.8 Subject to anything to the contrary in clauses 4.1 to 4.7 hereof the powers and discretions given to my Trustees by this Will and the administrative provisions thereof shall apply to the Property Fund so far as they are capable of being exercised therein”[/FONT]



Much appreciated anyone's interpretation of this. I have been round the houses and no one has been able to shed any helpful light on this matter yet.