Can’t find a deed of variation

Tinamw

My father died in October 2020 and probate is being sorted by solicitors. Everything was going smoothly but they’ve hit a bump. 

My mother died in January 2009. My sister called me this evening to say that in my mother’s will she’d left each of her surviving children a substantial lump sum. Now none of us can remember her bequest being mentioned ( I think I’d remember something like that but it was an upsetting time) but my father asked us to sign a deed of variation so that he kept this money, presumably knowing it would come to his children eventually.

The hiccup is that the solicitors have seen my mothers will but cannot find the Deed of Variation. This creates IHT problems as unless there is physical proof of the DoV then the taxman will take more from my fathers estate before it gets divided between us siblings. 

I will be looking through all the paperwork tomorrow to see if we can find it, but we’ve already been through it a few times for various reasons and I’d have thought I’d notice a DoV. Should we not be able to find it what can we do?

The solicitors originally holding my father’s will were taken over by another company in 2010, and then again that company was taken over by a third solicitors in 2014. The 2014 solicitors said they didn’t have a copy of my fathers will, so will be unlikely to hold the DoV. our solicitors dealing with probate got the will from the National Will Register.

P.S. I have been through all the paperwork this morning and no sign of the DoV.

Sea_Shell

How would finding the DoV help?

This is normally done the other way round, ie your Dad is left everything, but does a dov to you so the amount never hits his estate. 

By doing a dov you've effectively moved that money into your father's estate from yours.

Are you now wanting to somehow repudiate the DoV?

Sea_Shell

If there was no DoV, and you have never received money from your Mum's estate, then you are owed that money.

Was Dad the executor of mum's will?

Did he get legal advice to do the DoV?

naedanger

Sea_Shell said:

How would finding the DoV help?

This is normally done the other way round, ie your Dad is left everything, but does a dov to you so the amount never hits his estate. 

By doing a dov you've effectively moved that money into your father's estate from yours.

Are you now wanting to somehow repudiate the DoV?

The problem may be that it reduces the amount of nil rate band that can be transferred from his mother's estate to his father's estate e.g. suppose his mother left, say, £500,000 to the children. Then only their father's own nil rate band could be claimed now.

xylophone

Now none of us can remember her bequest being mentioned ( I think I’d remember something like that but it was an upsetting time) but my father asked us to sign a deed of variation so that he kept this money, presumably knowing it would come to his children eventually.

This seems rather contradictory.

Surely your father must have mentioned the bequests if he asked you to sign a DoV in his favour?

https://www.gov.uk/alter-a-will-after-a-death

You don’t need a formal document or deed - you can write a letter as long as it meets these conditions.

Are you sure  there was  a formal Deed?

https://www.gov.uk/government/publications/inheritance-tax-instrument-of-variation-checklist-iov2

naedanger

Was your late father your late mother's executor? Do you definitely remember signing the deed of variation?

If not, then as Sea_Shell has suggested, you could perhaps prove you are owed as a debt the money from your father's estate (so it would not count towards the estate and so not be subject to IHT). Not sure how that would go down with the taxman. It might depend on having records from 2009 onwards that show you never got the money. But even then the taxman might argue that you gifted the money to your father.

Tinamw

I really can’t remember what happened. I feel I would have known if there was a six figure sum that I signed away. I’ll look at the links.

Thanks all.

getmore4less

Did you read what you think you signed.

The DOV may not have mentioned the amounts. 

naedanger

How many children are there?
Is there any chance probate was obtained for your late mother's estate?
Was a solicitor involved in the handling of your late mother's estate at all? 

Tinamw

Sorry. I was waiting for more news.

Our current solicitor has found a letter from Sol1 (I presume) notifying a letter or DoV was sent to my father and asking him to get us to sign.

There are 3 of us. I’m not sure if there was a solicitor dealing with my mother’s estate, except for the letter mentioned above. I don’t remember signing anything for anything at the time, but I’ve mentioned how upset we all were, especially as there was no warning of her demise. She literally dropped down dead.

Marcon

Tinamw said:

My mother died in January 2009. My sister called me this evening to say that in my mother’s will she’d left each of her surviving children a substantial lump sum. Now none of us can remember her bequest being mentioned ( I think I’d remember something like that but it was an upsetting time) but my father asked us to sign a deed of variation so that he kept this money, presumably knowing it would come to his children eventually.

I will be looking through all the paperwork tomorrow to see if we can find it, but we’ve already been through it a few times for various reasons and I’d have thought I’d notice a DoV. Should we not be able to find it what can we do?

What makes you so sure there is a DOV if you don't remember anything about one? Memories do play tricks, especially when they are hot on the heels of a bereavement. Have you seen your mother's will and checked what it says? 

If you can't find the DOV, then only a part (or possibly none) of the £325K Nil Rate Band in respect of your mother will be transferable to add to your father's NRB. If there's a property involved now, don't forget that could increase the additional NRB: https://www.gov.uk/government/publications/rates-and-allowances-inheritance-tax-thresholds-and-interest-rates/inheritance-tax-thresholds-and-interest-rates