Published guidelines: destination of property must be varied
The third bullet under the guidelines at IHTM35021 sets out two requirements, the
- identification of the original disposition, and
- change of destination of the property subject to the specified disposition.
The first requires that the document which constitutes the variation clearly identifies the original dispositions and so establishes the linkage between their dispositive effect and the redistribution now intended.
A document such as a deed of assignment/assignation which merely transfers property in fact received by A under the will of X to the donee B without mention of that will does not satisfy this requirement.
However, the more usual deed of gift which recites the derivation of property under a will or intestacy or by survivorship in joint tenancy or under a survivorship destination in Scotland and then in the operative part simply disposes of all or part of that property to its new beneficial destination will qualify both under this and the second requirement detailed below.
Change of destination
The second requires that the destination of the property subject to the specified dispositions be changed. Where specific assets comprised in the death estate are redistributed to other persons by the person originally entitled to them, this requirement is plainly met. However, as IHT does not have and in general does not require any expansive statutory definition of ‘property’, there may be an apparent disparity between the subject-matter of the property in fact comprised in the estate immediately before the death and that of the purported redirection attempted by the IoV. The examples at IHTM35026 provide further guidance. If the property that is being redirected does not exist, for example, where an IoV purports to redirect a life interest (IHTM35042) after the life tenant has died, the IoV cannot take effect.