Can’t find a deed of variation

naedanger

Tinamw said:

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.

Assuming (a) the dov does not turn up and (b) even after allowing for Marcon's suggestions there is significant inheritance tax, in your position I would be speaking to my solicitor (or possibly HMRC) about what level of proof would be required to establish the money was not received by the children and not gifted to the father. 

For example, if you could prove your father received the money in question, and all three children were to swear that they never gifted this money to their father, would this be sufficient to for HMRC to be satisfied that either a dov must have existed, or your father's estate now has a debt to the children for this amount? If that would not be sufficient would it possible to get a court to rule on the matter (and what would that involve)? (Questions for solicitor, not the op.)

Marcon

Sudden thought...a DOV doesn't actually have to be a formal deed prepared by a solicitor. It could be a simple letter, provided it meets certain formalities. Could it be that you're looking for the 'wrong' thing?

Tinamw

But none of us can remember signing anything.

Marcon

Tinamw said:

But none of us can remember signing anything.

Then maybe you didn't and you are looking for something you'll never find. It would have been a peculiar thing to do.

xylophone

Sudden thought...a DOV doesn't actually have to be a formal deed prepared by a solicitor. It could be a simple letter, provided it meets certain formalities. Could it be that you're looking for the 'wrong' thing?

https://forums.moneysavingexpert.com/discussion/comment/78033934/#Comment_78033934

xylophone

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

Your mother made a will.

Have you seen it?

Was probate obtained and if so who was the executor?

Was an executor's account opened?

What records are available in respect of your mother's bank accounts etc?

naedanger

Tinamw said:

But none of us can remember signing anything.

Then it sounds like there was no deed of variation. All three of you forgeting you signed away six figure sums seems very unlikely. So while there is no harm continuing to look I think you should start planning for the possibility it will never be found, because it never existed.

Marcon

naedanger said:

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.

In which case the children would already have had the benefit of the mother's IHT allowance - if it's 3 children each with a six figure sum, you don't need to be a maths genius to work out that most, if not all, of the £325K will have been used up, so not sure the hunt for a possibly non-existent DOV is going to matter much.

It may be simpler to show that the children didn't receive their inheritances at the time of their mother's death and therefore should receive them now, as creditors of their late father.

A more interesting question, of course, is whether any IHT was paid on the mother's estate?

naedanger

Marcon said:

naedanger said:

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.

In which case the children would already have had the benefit of the mother's IHT allowance - if it's 3 children each with a six figure sum, you don't need to be a maths genius to work out that most, if not all, of the £325K will have been used up, so not sure the hunt for a possibly non-existent DOV is going to matter much.

It may be simpler to show that the children didn't receive their inheritances at the time of their mother's death and therefore should receive them now, as creditors of their late father.

A more interesting question, of course, is whether any IHT was paid on the mother's estate?

If the dov turns up then presumably that is the end of the matter. If it doesn't then the children may try to prove the inheritance from their mother's estate is a debt of their father's estate, which if they succeed would presumably mean there is still no IHT. But HMRC may argue that, in the absence of very strong evidence to the contrary, there is no debt on the estate (either because the children have forgotten(!?) they took their mother's inheritance or because they gifted it to their father (without appreciating the tax implications and the benefit of a dov)). Hence IHT would be payable on father's estate.

It would certainly be interesting seeing if there was any IHT return from the time of their mother's estate.  With luck it may even have included a dov. And it should show the amount of the spousal exemption (and by implication the amount the children inherited at least as far as HMRC were told). Even if the children had inherited then there may not have been much, or any, IHT at that time because presumably most of the total inheritance was covered by the spouse's exemption.
 

Tinamw

Hi. Me again.
I now have a copy of my mother’s will. The pertinent bit is - ‘I give free of tax to those of my children who shall survive me and if more than one in equal shares such sum as at my death equals the maximum amount which could be given to them by this Will without Inheritance Tax becoming payable in respect of my estate.’ 

I’ve also been in touch via web chat line to HMRC. They won’t discuss anything about my mother’s estate. I have to talk to her executor. I told them it was my father who died in October 2020. I suggested a seance. I asked what level of proof HMRC would need to accept we’d never signed a DoV, or received any bequests at the time of my mother’s death. HMRC say they need to see the DOV and could it have been sent to them? I didn’t ask what information they’d need to find out if they had ever received the DoV, although I did give them my mothers full name, DoB and DoD. They also suggested I get in touch with a solicitor for professional advice.

Are there any specialist solicitors who deal with HMRC in this type of scenario? Any advice gratefully received.