What is a Deed of Variation?
A Deed of Variation is a legal document that changes the terms of a person’s Will after their death.
Why would you need a Deed of Variation?
There are several reasons why the beneficiaries of a Will may wish to change the terms of the Will.
1. To avoid a Will dispute
In all Australian States, it is possible for eligible people to challenge the terms of a Will. This is possible if they believe they have not been given adequate provision for their proper maintenance, education and advancement in life. These challenges to a Will are commonly referred to as “family provision claims” and they generally result in court proceedings.
If beneficiaries are aware that there is a family provision claim going to be made and that the claim will most likely be successful, then they can sign a Deed of Variation. This will change the terms of the Will. As a result, the person making the claim will receive adequate provision from the Estate. By doing this the beneficiaries can avoid potentially expensive and time-consuming court proceedings. It also helps the Estate be distributed as soon as possible.
2. A beneficiary is refusing the accept their inheritance
Another reason for a Deed of Variation could be if a beneficiary is refusing to accept their inheritance. This could be for a variety of reasons. For example, accepting the inheritance could produce a financial impact on their pension. Or perhaps there is a personal reason.
In this instance, a Deed of Variation can ensure that the inheritance is not gifted to that beneficiary.
How do you get a Deed of Variation?
A Deed of Variation is a legal document so it is important that you obtain expert legal advice on the Deed. This includes an expert lawyer drafting the Deed of Variation, to ensure that it is valid, binding and effective. To be valid, a Deed of Variation should be signed by the beneficiaries named in the Will, as well as the Executor named in the Will. This demonstrates that the terms of the Will are being changed by the mutual consent of all persons interested in the Estate.
In addition, an expert Wills and Estates Lawyer can ensure that any taxation implications in changing the terms of the Will are addressed, such as capital gains tax, as well as addressing any impact that the change may have, on any payments being received by beneficiaries from Centrelink or other pensions.
Need a Deed of Variation?
Heckenberg Lawyers are experts in Estate Planning, Will Disputes, creating Wills, creating a Deed of Variation and more.