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HMRC internal manual

Capital Gains Manual

From
HM Revenue & Customs
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Variations: instruments of variation: general

An instrument of variation may be executed even if the assets involved have alreadyvested in the legatee. But if the assets have been sold by the legatee before theinstrument is executed, there would appear to be difficulties in accepting theinstrument’s validity as an instrument of variation, on the basis that in general lawthe instrument takes effect from the date of execution, and no one can make a gift ofproperty which he or she does not have. So what the person executing the instrument can dois to make a gift of cash, not the asset which is no longer owned. See further the SpecialCommissioner’s decision in Soutter’s Executry v CIR, [2002] STC(SCD)385, an IHTcase.