A deed of variation is a contract that makes changes to someone’s will after they have died. It happens when the beneficiaries of a will agree to distribute the estate differently to the terms the will sets out.
It is a legal document that must be drawn up by a lawyer and signed by all the beneficiaries to be valid.
Why would you want a deed of variation?
It may seem inappropriate to want to change a will after someone has died. But there are some circumstances in which it makes sense, and does not necessarily go against the spirit of a will or the wishes of the person who left the will.
Some reasons you might want a deed of variation are:
- You would like your children to benefit from the will rather than you. This might happen if one of your parents left all their estate to you and your siblings, but you’d like the next generation to have a share.
- You feel that you don’t need everything you’ve been left and would rather see it go to another family member, perhaps someone who’s struggling financially.
- Someone has been left out of the will who you think should have been included. For example, the deceased might have cut someone out of the will in anger who they had since made up with but not had a chance to change their will back.
- The will was made a long time ago and not updated, and you believe the deceased would have made different choices if they’d made the will more recently. For example, children might have been born into the family since the will was made.
- One of the beneficiaries has refused their share of the will. Though this is rare, sometimes people find it difficult to accept their share for personal or financial reasons.
- The deceased had dependents who were not provided for in the will. When this happens, dependents can also make what’s called a ‘family provision claim’ in court. We’ll go into this in more detail down the page.
How do you get a deed of variation?
To get a deed of variation, you should first contact a contract lawyer. You’ll need to work with someone who can draft the deed of variation accurately, in accordance with state and federal laws.
There may be tax implications for some beneficiaries. It’s important that you also get financial advice from an expert professional before the deed is signed.
It is absolutely vital that every beneficiary of the will agrees to and signs the deed. If they don’t, then it is not valid and binding.
Alternatives to a deed of variation
Sometimes, a deed of variation isn’t a viable option, usually because one of the beneficiaries does not agree to it.
If this is the case, there might still be grounds for changing the will, but it will need to be challenged through the courts.
If the deceased left dependents, including spouses as well as children who they did not provide for in the will, then a family provision claim can be made. This is a legal claim on the will to make sure that dependents receive funds for living costs, education and, if needed, care.
If this isn’t the case, but you believe that the will doesn’t reflect the deceased’s final wishes, then you may be able to contest it through the courts. You might have grounds for contesting the will if you can show that the deceased was pressured into changing it or that they were not in a fit mental state to make a will.
In either case, your first step is to contact a lawyer who can assess your case and advise you on how to go ahead. It should be remembered, though, that a deed of variation is a much simpler, less stressful process and should be your first choice if it’s an option.
If you’d like to know more about deeds of variation, we’d be happy to help.
