Who should make the instrument?: interests of persons not party to the instrument (England, Wales and Northern Ireland)
There is doubt as to how far, if at all, an instrument of variation (IoV) can be effective as a variation of a disposition under a will or an intestacy within IHTA84/S142 if all the persons who benefit under that disposition and whose interests would or might be adversely affected by the variation are not parties to the variation. An IoV which adversely affects the interests of minor or unborn beneficiaries can achieve total validity only by obtaining the approval of the Court (on an application under the Variation of Trusts Act 1958, or under the Court’s inherent jurisdiction). A parent’s signature on behalf of a minor is not sufficient.
However, where the necessary application to a Court has not been made, some IoVs may nevertheless be regarded as having achieved part of their object on execution, and the remainder on a subsequent event which eliminates the contingent interests.
There are some examples of common situations at IHTM35047.
It is not possible to categorise all situations, but there may be instances in which it is possible to achieve an acceptable solution by agreement that the IoV has limited effect. In cases similar to the examples, or combinations of them, you should draw the defect to the taxpayers’ attention. You should consult Technical before giving your views about the construction of the IoV and the limited effect it may have.
You should not approve suggestions by the taxpayers if their adoption would fail to give full and complete protection to the interests of infant, contingent or unborn beneficiaries within the terms of the instrument itself. For example you should not accept suggestions that the contingency be covered by
- insurance, or
- the creation of some other trust to safeguard such beneficiaries.
If, after the defect has been drawn to their attention, the taxpayers decline to adopt the limited effect interpretation but are prepared to regard the IoV as totally void ab initio, there is usually no objection to our agreeing with them, provided that the parties to the IoV submit their written agreement that the document is to be so regarded.