It is not uncommon for a will to provide for a division of assets which is not what the beneficiaries think would be for the best. In such cases, providing there is agreement amongst the beneficiaries, there is a statutory procedure by which the will can be treated as varied for most purposes. This may be beneficial in many circumstances.
For a disposition to be treated ‘as if the variation had been effected by the deceased’, four conditions must be satisfied:
- The variation must be made in writing;
- It must be made within two years of the date of death;
- It must refer to the statutory provisions to which it is intended to apply; and
- It must not be made for consideration (i.e. not part of a ‘bargain’).
The variation must be executed in the appropriate form by the person or persons disposing of their interest under the will, the person or persons who will benefit from the disposition and all the deceased’s personal representatives.
Although the arrangements are commonly referred to as ‘varying the will’, in reality what occurs is the making of a gift from one or more beneficiaries to one or more other beneficiaries. Making a variation may be difficult when there are issues such as questionable mental health, insolvency of the donor or where one of the parties is a minor.
In all cases, it is important that such arrangements are made with appropriate professional advice and are based on a thorough understanding of the circumstances of all those involved.