How do I change a Will?
It is possible to change your inheritance under a person’s Will within two years of their death. You may wish to do this for a number of reasons, such as to reduce inheritance tax or to pass your inheritance on to a charity or the next generation. You can change the Will by formal deed (sometimes called a ‘Deed of Variation’, ‘Deed of Family Arrangement’ or ‘Deed of Disclaimer’) or informally by writing a letter or other document, as long as these requirements are met.
What changes can I make?
You only have the power to change your own inheritance under the Will. If the changes you wish to make affect other people’s inheritance, those changes must either:
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Benefit the beneficiaries; or
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Be consented to by those beneficiaries left worse off.
Do I need the court’s approval?
You will need the court’s approval if the changes affect the interests of four categories of beneficiaries who are unable to approve those changes on their own behalf. The four categories are:
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A person with an interest in the Will who cannot consent because they are a minor or lack mental capacity.
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A person with a hope or expectation of obtaining an interest in the Will in the future.
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A person who has not been born.
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A person with a discretionary interest in the Will under a protective trust in which the protected life interest has not ended.
How do I apply for the court’s approval?
If you need the court’s approval, you will need to make an application under section 1 of the Variation of Trusts Act 1958. The application should be begun by filing a Part 8 Claim Form (called ‘Form N208’) at court, accompanied with evidence in support of the application, which is usually set out in a Witness Statement.
The court has jurisdiction to consent on behalf of a person if it considers that the proposed variation would be for the benefit of that person. You will therefore need to explain why, in your view, the application is for the benefit of those beneficiaries who cannot approve the changes. The benefit often takes the form of a financial benefit, particularly the avoidance of tax, however any other forms of benefit, such as educational or social benefit, may also be sufficient. The court in exercising its discretion to approve your variation will pay regard to what the trustees say about the proposed changes and the reasons for their views, but will not treat their views (or any views expressed by the deceased during his or her lifetime) as conclusive. Provided the judge is satisfied with the proposal, the arrangement will then be approved, and the Will can be changed.
What else do I need to include as evidence?
In addition to providing an explanation for why you are proposing the variation, your evidence will need to include the Will itself, any other supplemental documentation and a schedule setting out the proposed variation to the Will (e.g. a Deed of Variation). It is also advisable to include information on the value of the deceased’s estate and the background to the Will, including a family tree.
For changes affecting minors or unborn beneficiaries, additional provisions will apply, and your evidence must include:
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Confirmation that their litigation friend(s) (in the case of minor beneficiaries) or the trustees (in the case of unborn beneficiaries) support the arrangement as being for their benefit, and
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A written opinion to the same effect by the advocate who will appear on the hearing of the application. The court may dispense with the need for an opinion, but this is rare in practice.
It is common for any other beneficiaries whose interests are affected by the changes to include a short Witness Statement confirming that they support the application. At the very least, they will need to confirm in the acknowledgment of service that they do not intend to oppose the application to vary the Will.
Will there be a hearing?
Your application may be listed for a hearing before a Chancery Master or a Judge in the General List in the Chancery Division. All applications to vary a Will must be dealt with at a hearing, apart from in exceptional circumstances, as it is not generally appropriate for a variation to be approved on paper.
Who pays the costs?
The court’s order will deal with the costs of your application. Usually, the parties will agree before making the application how the costs will be met, whether that be by the principal beneficiary under the new changes or by the estate. The order normally reflects the parties’ agreement.
If you would like to find out more about changing someone’s Will after they have died, or if you need assistance with the court process, please contact our Dispute Resolution Partner, Toby Walker, on 01494 893512.