Although the legal system in this country recognises “testamentary freedom”, ie that you can leave your estate to whoever you want, this is modified by the Inheritance (Provision for Family & Dependants) Act 1975 which allows the Courts to override the testamentary dispositions in contested wills.
There is also a document called a “Deed of Variation” which allows the estate to be distributed differently to the will provided that the beneficiaries agree. This is usually done for tax purposes and in order to receive the tax advantages they must be entered into within two years of the date of death. An asset can only be redirected once, and the alteration to the distribution of the estate is treated as though it was made by the testator within the will.
The executor’s duty is to distribute the estate in accordance with the will having already dealt with the estate’s liabilities. Occasionally gifts under the will cannot be made (or cannot be made in full).
This is usually due to one of several reasons:
- Vexatious gifts – if the deceased did not own an asset then it cannot be left under their will.
- Gifts that were owned at the date of making the will but were not owned by the testator at the date of death. This is called "Ademption".
- Gifts of residue may fail if there are no funds in the residuary estate. In these circumstances cash legacies may have to be proportionately reduced. This is called "Diminution".
At LCS we can advise on and draft deeds of variation and through our approved Solicitors who can arrange to prosecute or defend Inheritance Act claims.