CG31650 - Death and Personal Representatives: Variation of the devolution of an estate: Instruments of variation: conditions

TCGA92/S62 (6) to (9)

Form IOV2, available on the GOV.UK Internet Site, provides a detailed checklist for anyone drafting an instrument of variation.

The conditions, all of which must be satisfied, are that

  • the variation must be effected by an instrument in writing made within two years of the person’s death
  • the persons who wish to give up all or part of their entitlement under the will or intestacy provisions must be parties to the instrument

  • there must be no consideration in money or money’s worth for the variation other than consideration in the form of a disclaimer or variation of other dispositions of the same estate

  • if the instrument was executed after 31 July 2002 it contains a statement of intent, that the provisions of s.142(1) IHTA and/or s.62(6) TCGA should apply

or

  • if the instrument was executed on or before 31 July 2002 written notice must have been given to the Board by the parties making the variation within six months of the date of the deed, or such longer period as the Board may allow.

The following guidance deals specifically only with instruments executed on or after 31 July 2002.

You may receive what purports to be an election under s.62(7) TCGA, which relates to an instrument made after 31 July 2002 in a case where the instrument does not contain the statement of intent. If so please refer it to HMRC Trusts and Estates - IHT in accordance with CG31669. It may be that the parties claim that the deed should be rectified. If so see IHTM35086.