Beta This part of GOV.UK is being rebuilt – find out what this means

HMRC internal manual

Capital Gains Manual

Death and Personal Representatives: Variation of the devolution of an estate: Variations following proceedings in the courts:Variations: estate: Court proceedings

If

  • Court proceedings result in either a full Court order or a compromise order in `Tomlin’ form varying the devolution of an estate

and

  • this is not regarded as an order under Section 2 of the Inheritance (Provision for Family and Dependants) Act 1975

then the order is considered to be a variation to which the provisions of Section 62(6) are capable of applying.

The treatment of the order will depend on how long has elapsed between the date of death and the making of the order.

  • If the order is made within 2 years of the date of death and an election under TCGA92/S62(7) is made within 6 months of the date of the order, the order should be treated as retrospective to the date of death. The terms of the deed supersede those of the will and there will be no occasion of charge for Capital Gains Tax purposes when the assets are transferred to the persons named in the deed.
  • If the order is made within 2 years of the date of death and no election under TCGA92/S62 (7) is made within 6 months of the date of the order but a late election is subsequently received the procedures in CG31600+, adapted for the fact that you are dealing with a Court Order rather than a deed of variation, should be followed.
  • If the order is made within 2 years of the date of death but no election under TCGA92/S62 (7) is made within 6 months of the date of the order and you are told no election will be made then the Court order will not be retrospective to the date of death. You should assume that the assets involved had not vested at the date of the order because of the Court proceedings. You should then proceed in accordance with CG31940+.
  • If the order is not made within 2 years of the date of death then it will not be retrospective to the date of death. You should assume that the assets involved had not vested at the date of the order because of the Court proceedings. You should then proceed in accordance with CG31940+.