partially disclaiming a gift in a will

brabazon1

I'm in the process of dealing with my late father's estate which contains a house, money in banks and investment funds. In addition to my father's NRB and RNRB all of my late mother's NRB and RNRB are available so there are no IHT liabilities. My father's Will gifts all of his residual estate (basically everything) to myself  but as accepting it will create potential major IHT issues for myself in the future I am minded to disclaim my inheritance so that, in accordance with the Will, the estate will pass equally to my two children who would have inherited should I have predeceased my father.

However, there are one or two items in the estate that have some sentimental, family history and a moderate financial value that I would like to keep. I know that, in general, the law only allows me to disclaim the 'whole' of a gift rather than a part of it. As the gift to myself in the will is the 'residual estate' (basically everything) if I want to keep the one or two of the items I referred to above and pass the remainder (basically 95% of the estate) to my children I suspect I'd normally have to go along the route of a 'deed of variation' rather than a waiver of the gift.

However:

My father's Will has a Partial disclaimer clause  which states:  "Any person who is beneficiary to property or an interest in property under this my Will or any Codicil to it shall be as free to disclaim a part or parts of that property as he is to disclaim the whole and in the event of any such disclaimer (whether partial or complete) the property (or the interest in property) which is disclaimed shall devolve as if the person disclaiming had predeceased me"

Does this mean that I am therefore able to go along the route of writing a disclaimer for the 95% of the assets I don't want and just accepting the  few items that I do or is it still preferable to go along the route of a 'deed of variation' to the Will? 

I will no doubt be seeking some professional help with estate to distribute the house in the correct way but before I do it would be interesting to get some considered opinion about whether the partial disclaimer of the inheritance would be a viable route (based on the Partial disclaimer clause in the Will) or whether a 'deed of variation " is required.

Marcon

brabazon1 said:

I'm in the process of dealing with my late father's estate which contains a house, money in banks and investment funds. In addition to my father's NRB and RNRB all of my late mother's NRB and RNRB are available so there are no IHT liabilities. My father's Will gifts all of his residual estate (basically everything) to myself  but as accepting it will create potential major IHT issues for myself in the future I am minded to disclaim my inheritance so that, in accordance with the Will, the estate will pass equally to my two children who would have inherited should I have predeceased my father.

However, there are one or two items in the estate that have some sentimental, family history and a moderate financial value that I would like to keep. I know that, in general, the law only allows me to disclaim the 'whole' of a gift rather than a part of it. As the gift to myself in the will is the 'residual estate' (basically everything) if I want to keep the one or two of the items I referred to above and pass the remainder (basically 95% of the estate) to my children I suspect I'd normally have to go along the route of a 'deed of variation' rather than a waiver of the gift.

However:

My father's Will has a Partial disclaimer clause  which states:  "Any person who is beneficiary to property or an interest in property under this my Will or any Codicil to it shall be as free to disclaim a part or parts of that property as he is to disclaim the whole and in the event of any such disclaimer (whether partial or complete) the property (or the interest in property) which is disclaimed shall devolve as if the person disclaiming had predeceased me"

Does this mean that I am therefore able to go along the route of writing a disclaimer for the 95% of the assets I don't want and just accepting the  few items that I do or is it still preferable to go along the route of a 'deed of variation' to the Will? 

I will no doubt be seeking some professional help with estate to distribute the house in the correct way but before I do it would be interesting to get some considered opinion about whether the partial disclaimer of the inheritance would be a viable route (based on the Partial disclaimer clause in the Will) or whether a 'deed of variation " is required.

See https://www.thegazette.co.uk/wills-and-probate/content/101535

Keep_pedalling

What makes you think it has to be all or nothing? You can make a deed of variation passing all or part of your inheritance to your children. 

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

RAS

Just make sure that you do it within 2 years of the date of death.

poseidon1

There is a big difference between disclaimers of entitlements under a will and deed of variation to expressly redirect one's entitlements. OP definitely requires deed of variation to achieve his objectives so needs legal advice for the appropriate drafting of the necessary  deed.

lincroft1710

brabazon1 said:

I'm in the process of dealing with my late father's estate which contains a house, money in banks and investment funds. In addition to my father's NRB and RNRB all of my late mother's NRB and RNRB are available so there are no IHT liabilities. My father's Will gifts all of his residual estate (basically everything) to myself  but as accepting it will create potential major IHT issues for myself in the future I am minded to disclaim my inheritance so that, in accordance with the Will, the estate will pass equally to my two children who would have inherited should I have predeceased my father.

.

There are no IHT issues for you in the future, it may create IHT issues for the beneficiaries of your estate when you pass. But even then there are 2 important issues to consider. Firstly the value of your estate could easily diminish for several reasons. Secondly IHT thresholds and rates will undoubtedly change 

silvercar

Why are you less interested in doing a deed of variation than a disclaimer?

StokeHarry

Deed of Variation Example Draft
Spouse died, tenants in common, want to vary will to gift their half of house to child.
Does anyone have an example of a deed?
Solicitors asking £900 for what appears to be a simple letter.

RAS

You need advice about the potential impact of this on IHT after your death.

And would be exposing your child to additional taxes, problems if they need to claim benefits, buy a house of their own, married and divorced, or got into financial difficulties.

There are ways round these but that legal advice could save your child £x,000 when x exceeds 10.

Marcon

StokeHarry said:

Deed of Variation Example Draft
Spouse died, tenants in common, want to vary will to gift their half of house to child.
Does anyone have an example of a deed?
Solicitors asking £900 for what appears to be a simple letter.

Except it isn't - or shouldn't be. I would expect them to be giving you advice about what you're doing, not just crank out a standard-type letter.

Malthusian

StokeHarry said:

Deed of Variation Example Draft
Spouse died, tenants in common, want to vary will to gift their half of house to child.
Does anyone have an example of a deed?

That would be legal advice for which you need to consult a registered solicitor.

Solicitors asking £900 for what appears to be a simple letter.

If you want a simple letter you can write one yourself.

If you want someone to get it right and to be liable for the outcome, then £900 seems reasonable to me. You could always ring up a couple more local solicitors and shop around.

And I echo RAS' advice about the risks of giving away half your house to your child, particularly divorce and potential loss of first-time buyer status. Are you going to sell the house so they can actually make use of the gift?