Q&A - Is it possible to change a Will after someone has died?

Q: I have just discovered that my parents made their Wills in 1994 before the law changed to reduce inheritance tax and they never updated them. My dad died a month ago and mum is in a home because she has dementia. Is there any way that my father’s Will can be changed so that mum can benefit from the current tax free rules?

A: It is possible to change a person’s Will after death, provided the changes are agreed by any beneficiaries whom those changes would make worse off. It is good practice to include the Executors as parties to the changes as they may be required to sign any documentation giving effect to the changes.  Reasons to make changes would be to reduce the Inheritance Tax or Capital Gains Tax liability, to provide for someone left out of a Will, to move the deceased’s estate into a Trust or to clear up any uncertainty over a Will.  Any changes made must be completed within two years of the death.

To change a Will you must make a ‘variation’. Whilst there is no specific form for this procedure, a variation would usually be evidenced by a deed signed by the parties affected. Provided the variation is completed within two years of the deceased’s death, the effect for tax purposes is that the terms of the document are read back into the deceased’s will as if the new gift had, in fact, been made by the deceased themselves. It would be advisable to have the Deed of Variation drawn up by a solicitor so that there can be no mistake as to the intention contained therein.

Sometimes a variation can mean there is more Inheritance Tax to pay. If this is the case a copy of the deed must be sent to HM Revenue and Customs (HMRC) within 6 months of making it.

Article October 2019

Victoria Wilson

Victoria Wilson

Partner

A Partner and Head of our Probate, Wills, Trusts and Tax team

Ulia Choudhry

Ulia Choudhry

Solicitor

Part of our Probate, Wills, Tax and Trusts team in Wrexham