Q: My father has lost mental capacity and is in a home. I have just found out from his brother that he has not changed his Will since my mother died over thirty years ago. This means my sister and I will be his sole beneficiaries. We had hoped he would have changed his Will when we had our children so that they could have benefited from his wealth too. Now we could all be facing an unnecessary tax liability. Is it possible to make them beneficiaries retrospectively after he dies?
A: You can change a person’s Will after their death, provided that any beneficiaries in the original Will who will be made worse off by it agree.Even if a person dies intestate and the law decides who inherits, the beneficiary(ies) can make changes in the same way.
To make such a change, a deed of variation must be drawn up. A deed of variation can be used by any person who receives a gift under a Will, to redirect all or part of their inheritance to another person. Changes can be made before or after probate is obtained, but any changes to the Will must be completed within two years of the death, and paperwork must be signed by all executors and beneficiaries. Any variation takes place as if it had been made by the deceased (and not by the beneficiary). It is then “read back” into the will of the deceased for inheritance tax (IHT) purposes. If the deed of variation changes the amount of IHT due, a copy of the deed of variation must be sent to HM Revenue & Customs.
Whilst it is possible to change a will after someone has passed away, your situation highlights the importance of keeping a will updated during your lifetime as circumstances change.
This question has been answered by Victoria Wilson, a Partner with GHP Legal. If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients. Where possible, we ask that you communicate with us by phone or email. If you have a new enquiry or for an appointment visit www.ghplegal.com or contact one of our offices: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194
