Death and Personal Representatives: Non-retrospective variations: introduction
The ultimate destination of the assets a legatee is due to receive from an Estate may be varied by
- a deed of appointment
- a deed of disclaimer
- a deed of variation
- a Court Order
- a sale or gift of the beneficiary’s interest in the estate.
Deeds of appointment are dealt with at CG31430 and are not considered further here. The other categories of variation listed in CG31900 can all give rise to non-retrospective variations in the following circumstances.
- A deed of disclaimer will not be retrospective to the date of death if any one of the conditions in CG31490 is not satisfied.
- Similarly, a deed of variation will not be retrospective to the date of death if any one of the conditions in CG31650 is not satisfied. Frequently the condition that is not satisfied for deeds of variation is that no timeous election has been made.
- A Court Order may not be retrospective see CG31800+.
- A sale of a legatee’s interest in the estate made before the assets vest in the legatee will not be retrospective nor will a gift (otherwise than by deed of disclaimer or variation) of a legatee’s interest in the estate in the circumstances set out in CG31850
Whether or not assets vested
The effect of a non-retrospective variation depends on whether the assets affected by the variation have vested in the legatees or remain vested in the personal representatives at the date the variation is executed.
If, when dealing with such a non-retrospective disclaimer, variation, Court Order or disposal of a legatee’s interest
- you are satisfied that the asset(s) involved had vested when the deed was executed, the Court Order was made or the legatee disposed of his or her interest then see CG31920
- you conclude that the assets had not vested when the deed was executed then you should follow the instructions at CG31940+.