Applying for a Variation of a Will

When a person dies leaving a will, the terms they set out generally determine how their estate is distributed. In some circumstances, individuals who are set to inherit under a will or under the statutory rules of intestacy may decide they want to change the way that inheritance is distributed. This can be done in certain situations by entering into a deed of variation or, where appropriate, by bringing a court application under the Inheritance (Provision for Family and Dependants) Act 1975 to vary financial provision. This article explains what applying for a variation of a will involves, the legal mechanisms available, eligibility, how the process works, practical considerations and key time limits in England and Wales.

What Does “Applying for a Variation of a Will” Mean?

There are two distinct legal mechanisms that can result in a variation of how an estate is ultimately distributed:

• Deed of variation: a formal agreement made by beneficiaries to change the effect of a will (or intestacy distribution) as if the changes were made by the deceased; and
• Inheritance Act claim: a court application made by an eligible person seeking a variation of entitlement because the will or intestacy does not make reasonable financial provision for them.

Each route has its own legal requirements, time limits, and potential outcomes. Understanding which process applies depends on the circumstances of the estate and the reasons for seeking a variation.

1. Deed of Variation: Changing the Distribution by Agreement

What Is a Deed of Variation?

A deed of variation is a legal document executed by beneficiaries who are due to receive assets under a will or under the rules of intestacy. It allows them to redirect all or part of their inheritance to other people, organisations, trusts or combinations of those, on terms agreed by all relevant parties. Because it is treated as if the variation was made by the deceased, it can also have implications for tax planning, including inheritance tax and capital gains tax.

When Might You Use a Deed of Variation?

Beneficiaries may choose to vary a will for several practical reasons:

• Provide for someone who was unintentionally left out or inadequately provided for under the will or intestacy rules (for example, a long‑term partner).
• Redistribute assets more equitably among beneficiaries, often to prevent disputes.
• Move assets into a trust for future management or protection.
• Achieve tax efficiencies, such as reducing inheritance tax or capital gains tax liabilities.

Who Must Agree and Sign a Deed of Variation?

All beneficiaries whose shares are directly affected by the variation must sign the deed. In many cases, all beneficiaries under the will or intestacy must agree to changes that affect the overall distribution.

If the variation changes the tax position of the estate, the personal representatives (executors or administrators) should also sign and may be required to submit the deed to HM Revenue & Customs within six months where inheritance tax is affected.

A deed of variation must be in writing and executed as a formal legal document to be effective.

Time Limits for a Deed of Variation

For a deed of variation to qualify for inheritance tax and capital gains tax treatment, it must be completed within two years of the date of the deceased's death.

The deed can be made before or after probate is granted, but any variation intended to affect tax treatment must meet the time limit.

Limitations on What a Deed of Variation Can Do

A deed of variation can only vary the entitlements of beneficiaries themselves; it cannot be used to:

• Change or remove executors named in the will;
• Alter trusts or similar arrangements without the agreement of trustees and affected beneficiaries;
• Give someone a larger share unless a beneficiary agrees to reduce their own entitlement;
• Vary the interests of someone who is under 18 or lacks capacity without a court order.

2. Court Application Under the Inheritance (Provision for Family and Dependants) Act 1975

What Is an Inheritance Act Claim?

A claim under the Inheritance (Provision for Family and Dependants) Act 1975 is a court application brought by a person seeking reasonable financial provision from a deceased's estate where the will or the rules of intestacy have made inadequate or no provision for them. This is a legal challenge that can result in the court varying the distribution of the estate.

Who Can Make This Claim?

Eligible claimants include:

• The spouse or civil partner of the deceased;
• A former spouse or civil partner who has not remarried;
• A child (including adopted, fostered or adult children);
• A cohabiting partner (typically where the cohabitation was long‑standing);
• A person who was financially maintained by the deceased.

Grounds for an Application

A claim is based on the argument that the will or the intestacy distribution fails to make reasonable financial provision for the applicant. The court then exercises a discretionary balancing test considering factors such as financial needs, resources, size of the estate and obligations to other beneficiaries.

Time Limits

A court application under the 1975 Act must be made within six months of the date on which a grant of probate or letters of administration is first taken out.

If a claimant misses this deadline, the court may, in its discretion, permit a late claim, but this is strictly controlled and depends on the circumstances, including reasons for delay and whether the estate has been distributed.

The Process of Making the Claim

A claim under the Act is a formal court process and typically requires:

• Issuing a claim form and supporting documents at the Civil Courts (often under the Part 8 procedure of the Civil Procedure Rules);
• Evidence of financial need and justification for making the claim;
• Liaison with the personal representatives and other beneficiaries;
• Consideration by the court of all competing interests.

If successful, the court can order lump sums, periodic payments or transfers of specific assets from the estate to the claimant.

Practical Steps When Considering a Variation

Early Review of the Estate

Individuals considering variation should assess:

• Whether they meet the statutory criteria for an Inheritance Act claim; and
• Whether a deed of variation would be appropriate and has support from other beneficiaries.

Prompt action is important given the six‑month deadline for court claims and the two‑year deadline for deeds of variation with tax implications.

Seek Professional Advice

Both deeds of variation and Inheritance Act claims involve legal and tax complexity. Specialist advice from a solicitor or probate practitioner ensures that:

• Documents are drafted to meet legal requirements;
• Tax consequences (e.g. inheritance tax and capital gains tax) are properly addressed; and
• Potential disputes and risks are identified early.

Consider Family Dynamics and Costs

Variation processes may affect family relationships, and litigation under the Inheritance Act can be costly and time‑consuming. In some cases, negotiation or alternative dispute resolution may help reach a satisfactory outcome without full court proceedings.

Common Questions

Is a deed of variation the same as contesting a will?
No. A deed of variation is a consensual agreement among beneficiaries to redirect their inheritance. Contesting a will through an Inheritance Act claim is a court process seeking to vary provision because it is judged inadequate.

Can a deed of variation be used if there is no will?
Yes. A deed of variation can be used to alter the statutory distribution of an estate where a person dies intestate.

Does a deed of variation affect inheritance tax?
Yes. If correctly prepared within the two‑year limit and with the appropriate tax statements, a deed of variation can help reduce inheritance tax on the estate.

Key Takeaways

Applying for a variation of a will in England and Wales can involve either a deed of variation or a court application under the Inheritance (Provision for Family and Dependants) Act 1975. A deed of variation is a consensual legal document that redirects inheritance among beneficiaries and can provide tax advantages when completed within two years of death. An Inheritance Act claim is a court‑based challenge where the estate's provisions are considered inadequate, with strict time limits and eligibility criteria. Understanding the differences between these mechanisms and taking prompt legal advice can help individuals and families make informed decisions about how an estate is ultimately distributed.