No Deed of Variation to be 'allowed' in Will

castle96

IS it possible to stipulate this in a Will?. My brother has told me he will be stipulating this in his new Will (long story). I and my son will be the executors. We would wish to 'level up' the amounts/%s to 4 sons,, rather than 3. Brother did not get on with my 4th son. All sons + me, would agree

Keep_pedalling

Such a clause is not enforceable.

Marcon

castle96 said:

IS it possible to stipulate this in a Will?. My brother has told me he will be stipulating this in his new Will (long story). I and my son will be the executors. We would wish to 'level up' the amounts/%s to 4 sons,, rather than 3. Brother did not get on with my 4th son. All sons + me, would agree

He can stipulate anything he likes, so don't bother arguing with him - sounds a recipe for trouble if you do! Whether he can enforce such a clause from beyond the grave is another matter...and in this case, he can't.

theoretica

Even if you don't do it as a deed of variation, you can all gift some of your share after you receive it.  DOV is particularly useful if the person gifting part of their inheritance wants to avoid it being a gift that might be subject to inheritance tax for a second time, if they die within 7 years - but in many cases a simple gift works as well. 

Sea_Shell

AIUI, a Deed of Variation is primarily about the beneficiaries estate and what they choose to do with their inheritance to avoid it counting as a gift made in respect of their own exposure to IHT.


It's not within the control of the deceased.


So let them put in their "clauses" if it makes them feel better, but as others have said they won't be enforceable.

castle96

thanks all. Nice to know, for sure

lr1277

I ask this out of curiosity. The OP has said he and his son will be the executors.

However if there is a 3rd party who is the executor, say for example a lawyer, can they enforce such a clause?

I have seen many times on this board, a will is the wishes of the deceased. So could a zealous executor enforce such a clause? In which case the beneficiaries may have to go to court to get their way?

Sea_Shell

lr1277 said:

I ask this out of curiosity. The OP has said he and his son will be the executors.

However if there is a 3rd party who is the executor, say for example a lawyer, can they enforce such a clause?

I have seen many times on this board, a will is the wishes of the deceased. So could a zealous executor enforce such a clause? In which case the beneficiaries may have to go to court to get their way?

But how?

The executor distributes the estate according to the will.

Once the money hits the beneficiary's account, it's theirs, to do with as they see fit, which could include giving it away.   Or buying a sports car etc etc.

Beneficiaries have 2 years from the date of death, to do a DoV if that's what they decide to do.

Keep_pedalling

lr1277 said:

I ask this out of curiosity. The OP has said he and his son will be the executors.

However if there is a 3rd party who is the executor, say for example a lawyer, can they enforce such a clause?

I have seen many times on this board, a will is the wishes of the deceased. So could a zealous executor enforce such a clause? In which case the beneficiaries may have to go to court to get their way?

No, not everything in in wills is an enforceable clause. Some are simply wishes, instructions on funeral arrangements for instance can be ignored by the executor, often limiting the age a beneficiary can receive their inheritance is in reality just a wish, and the beneficiary can claim it once they are 18 (16 in Scotland).

As has already been said a DoV is down the beneficiary and they have 2 years from the date of death to make one  so can often be done after the estate has been distributed.

castle96

there is no 3rd party as exec, only me and 1 son. From what is said before, I am safe to assume that a DofV CAN be done and the wishes of the deceased ignored....

getmore4less

Executors only need to be involved in a DOV if there is a change in IHT on the estate they are administrating.

As the change won't introduce any new exemption that won't happen.