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HMRC internal manual

Inheritance Tax Manual

From
HM Revenue & Customs
Updated
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Succession: Wills: Characteristics of a Will

The Will:

  • must be in prescribed form that satisfies all the formalities (IHTM12044). (You do not have to consider whether a Will is valid as this will have already been decided by the Probate Registry or Sheriff Court).
  • operates only as declaration of intention and does not prevent a testator (IHTM12001) or testatrix (IHTM12001) from disposing during their lifetime of assets which may have been allocated to someone in the will
  • takes effect only on death and until that time the beneficiaries have no interest in the assets
  • may not only deal with dispositions of assets. For example, it may appoint a guardian of minors or give directions on burial or cremation arrangements
  • can be revoked (IHTM12071) or altered at any time before the testator/testatrix dies.
  • is ambulatory, that is to say it is capable of dealing with property acquired after it was made (provided the property is still owned by the testator at death).

If a beneficiary dies between the time when the Will is made and the death of the testator or testatrix the beneficiary’s estate will generally take no benefit under the will. The gift is said to have lapsed. But there are exceptions to this rule (IHTM12084).

A beneficiary cannot be forced to take a benefit under the Will. They may disclaim the benefit (IHTM35161) at any time before they take possession of the asset. If the interest is disclaimed then the disclaimer is treated as a transfer of value (IHTM04024) unless the provisions (IHTM35162) of IHTA84/S142 are satisfied. A beneficiary may also choose to redirect a benefit using an instrument of variation (IHTM35011).