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Deed of Variation

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  • Deed of Variation

    Hello,

    After the passing of my father I was appointed the executor in his Will, and have obtained probate, and in most respects completed the administration of his Will.

    The majority of the estate was passed to my Brother and Sister, and the Will clearly stated that the testamentary expenses would be met equally between my Brother and Sister (i.e. 50/50)

    Because my brother was married, it was in his interest to use a "Deed of Variation" so that his inheritance was equally split between his wife and himself. As executor I agreed to this alteration because it cost nothing, and would be advantageous to him from a tax perspective going forward.

    When all this had been completed and I presented the testamentary expenses to my Brother and Sister, my Brother refused to pay. After months (Well over a year actually) of arguing, I eventually snapped, and started a small claims action to recover these expenses.

    In his response to the claim he has stated that his solicitor has advised him that because the "Deed of Variation" did not contain a specific clause explicitly stating that I still intended to recover the testamentary expenses, he's within his rights to refuse to pay!

    I'm sure this cannot me the case, as why would I approve a "Deed of Variation" which disadvantages myself. The "Deed of Variation" clearly performs only the act of splitting his inheritance equally between himself and his wife, and makes no reference to any other part of the Will being executed.

    If he was right a "Deed of Variation" would need to be a whole new Will, not just a variation of part of the terms. Can anybody advise on if my interpretation is sound. I cannot believe that his view could be supported in Law, and that all the other terms of the Will (Including the testamentary expenses) remain valid.

    FYI: My own solicitor at the time I was preparing this "Deed of Variation" checked the Deed, and did not make any such comments that I may be writing off the testamentary costs. I feel that if he's correct I have good cause to challenge my own solicitor's advice that the Deed was OK.

    Many thanks,
    D.
    Tags: None

  • #2
    Hi Donchick,
    Just to clarify, did the brother and sister receive the residue of the estate or were they specific gift legacies such as sums of money, a property for example.

    The wording of the Will is relevant as to where the testamentary expenses come from. Hopefully with a little more information we can point you in the right direction.
    I am a qualified solicitor employed by the LegalBeagles forum to provide guidance on a wide range of legal queries. I am happy to try and assist informally, where needed.

    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any practical advice I give is without liability. I do not represent people on the forum.

    If in doubt you should always seek professional face to face legal advice.

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