Death and Personal Representatives: Variation of the devolution of an estate: Outline: Varying devolution of estate: methods of varying devolution
The devolution of the estate may be varied in a number of ways.
DEEDS OF APPOINTMENT
- If a will directs that after completion of the administration period, some or all of the assets of the estate are to be held on trust and that trust contains powers enabling the trustees to appoint assets out of the trust, a deed of appointment may be executed so that those assets pass direct to the appointee on vesting rather than entering the trust.
DEEDS OF DISCLAIMER
- If a legatee wishes to give up his or her entitlement to assets of the estate without directing how those assets should be dealt with thereafter, a deed of disclaimer may be executed.
INSTRUMENTS OF VARIATION
- If a legatee wishes to give up his or her entitlement to certain assets of the estate but wishes to direct to whom those assets should devolve in place of that legatee, a deed or other instrument of variation may be executed.
- If court proceedings have been commenced-
- a court may in certain circumstances order a variation of the devolution
- the parties may reach a compromise and the court will order that the proceedings be stayed or dismissed on the terms that the assets will devolve in accordance with the agreed compromise.
DISPOSAL OF LEGATEE’S INTEREST
- The legatee may decide to sell his or her expectation of receiving assets from the estate or to give that expectation to some other person without executing a deed of disclaimer or variation.
The Capital Gains Tax effects flowing from the variations arising under these different forms of variation are dealt with in the following paragraphs