Can You Change a Will After Someone Has Died? How a Deed of Variation Can Solve an Inheritance Dispute

The will has been read.

One child receives the house. Another receives almost nothing. A new partner has been left out. Three siblings inherit equally even though one wants the family business and the others want cash.

Or perhaps there was no will at all, and the intestacy rules have produced a result which nobody thinks the deceased would have wanted.

The immediate reaction is often: “But the will says that. Can anything be done?”

Sometimes: yes.

A will is the deceased’s final testamentary document. The deceased cannot amend it after death. But the people who inherit can sometimes agree to alter the way in which the estate is distributed.

The mechanism commonly used is called a deed of variation — and in an inheritance dispute it can be an extremely useful tool.

This article concerns the law of England and Wales.

What is a deed of variation?

The will is not rewritten. What changes is where the beneficiary’s own entitlement goes.

	Original will	After variation
Mother’s estate	→ Anna £100,000	→ Anna £50,000
		→ Granddaughter £50,000

Do you actually need a “deed”?

Despite the name, not always.

People commonly refer to a deed of variation. But GOV.UK confirms that a formal deed is not invariably required. A written instrument — potentially even a properly drafted letter — can be sufficient if it meets the legal requirements.

In practice, where significant property, tax or an inheritance dispute is involved, a professionally drafted deed or instrument of variation is normally sensible.

Source: GOV.UK — Change a will after a death.

You can also vary an intestacy

No will? A variation may still be possible.

A deed of variation is not limited to estates where there is a will. If somebody dies intestate, the people entitled under the intestacy rules can also agree to vary the destination of their inheritance.

That can be extremely important in:

• blended families;
• unmarried-partner cases;
• estranged families;
• and situations where the statutory intestacy formula produces an outcome the family does not want.

See also: Unmarried Partners and Intestacy: Who Inherits — the Partner or the Children?

An example: the new partner and the children

The house everyone is fighting about

David dies without a will. He has Sarah — his unmarried partner of 15 years — and Tom and Lucy, his two adult children from his previous marriage. David owns his home in his sole name.

Under the present intestacy rules Sarah does not automatically inherit simply because she was David’s long-term partner. Tom and Lucy inherit.

Sarah says: “David always said I could stay in the house.” Tom and Lucy say: “It was Dad’s house and it is our inheritance.”

Sarah is considering an Inheritance (Provision for Family and Dependants) Act 1975 claim. The family could litigate. Or they might mediate.

What could they agree? For example:

• Option 1 — Sarah receives a right to live in the house for life; the children inherit it afterwards.
• Option 2 — Sarah receives enough capital to buy a smaller home; the house is sold and the balance passes to Tom and Lucy.
• Option 3 — Sarah receives the house but gives up claims to other estate assets.
• Option 4 — The children transfer part of their inherited entitlement to Sarah.

If an agreement is reached, an appropriately drafted deed or instrument of variation may be one way of implementing that settlement. The correct legal mechanism will depend upon the terms of the settlement and upon professional advice.

This is why variations matter in mediation

A judge has orders. A family may have options.

Inheritance disputes are often difficult because court remedies and legal entitlements do not necessarily produce the arrangement which best suits the family.

A court might decide whether the will is valid; whether a 1975 Act claim succeeds; whether proprietary estoppel is established; or who owns particular property.

But at mediation the parties can construct a broader settlement. For example: one beneficiary takes the house; another takes investments; a surviving partner receives a life interest; children receive capital later; a trust is created; a family business goes to the sibling who works in it; other beneficiaries receive cash; or an intestacy entitlement is redirected by agreement.

The deed of variation can become the legal bridge between the mediated agreement and the new distribution of the estate.

The will may define everyone’s starting position. It does not necessarily have to define the settlement.

The two-year rule

For a variation to obtain the special retrospective treatment for Inheritance Tax and Capital Gains Tax, it normally has to be made within two years of the date of death.

HMRC states that all relevant parties must have signed within that period. There is no general discretion for HMRC to extend the statutory two-year period for section 142 purposes.

Simplified visual explainer

Two years from death

1. 1

   Date of death

2. 2

   12 months

3. 3

   18 months

4. 4

   24 months

5. 5

   Tax window closes

Source: HMRC IHTM35024.

A variation may still be possible after two years in the sense that a beneficiary can give assets away — but the special read-back under section 142 of the Inheritance Tax Act 1984 and section 62 of the Taxation of Chargeable Gains Act 1992 will generally no longer be available.

What if the estate has already been distributed?

It may not be too late just because the money has been paid.

HMRC confirms that a qualifying variation may still be made within the relevant two-year period even after the estate has been fully administered and the original inheritance has already been distributed.

For example: John receives £20,000 from his late wife’s estate. Six months later he decides that £20,000 should instead pass to his son. Provided the relevant requirements are met and the variation is within the statutory period, the fact that John has already received the money does not necessarily prevent the variation.

Source: HMRC IHTM35032.

Who has to agree?

You can give away your inheritance. You cannot give away somebody else’s.

A beneficiary can agree to reduce or redirect their own entitlement. But one beneficiary cannot rewrite another beneficiary’s inheritance.

If a will leaves Anna £200,000 and Ben £200,000, Anna can agree that she takes £100,000 and that £100,000 passes to Clare, without necessarily reducing Ben’s existing £200,000. But Anna cannot decide that Ben takes £100,000 without Ben’s agreement.

Any beneficiary whose entitlement is adversely affected must normally be a party to, or consent to, the variation.

What about children?

The tax treatment — and its limits

Why the two-year variation can be so valuable

Ordinarily, if Anna inherits £200,000 and later gives £100,000 to her daughter, Anna has made a lifetime gift.

A qualifying variation can potentially produce a different result for Inheritance Tax and Capital Gains Tax. Where the statutory conditions are satisfied and the instrument contains the necessary statement of intent, the law can treat the redirected disposition for those taxes as though it had been made by the deceased.

The relevant provisions include section 142 of the Inheritance Tax Act 1984 and section 62 of the Taxation of Chargeable Gains Act 1992.

The retrospective treatment concerns Inheritance Tax and Capital Gains Tax. It does not generally alter the position for income tax.

Source: HMRC TSEM1815.

Without qualifying variation	With qualifying variation
Deceased → Anna	Deceased → daughter
Anna makes a lifetime gift → daughter	For the relevant IHT / CGT purposes

Can a variation reduce Inheritance Tax?

Potentially, yes. For example, a beneficiary may redirect assets to a surviving spouse or civil partner, to charity, or into an arrangement producing a different tax result.

But the tax consequences can be complicated. A variation can also increase tax; interact with exemptions; affect trusts; affect transferable allowances; or produce unintended consequences elsewhere.

Do not execute a deed of variation for tax reasons without proper tax advice.

What if the variation increases IHT? If a qualifying variation results in additional Inheritance Tax becoming payable, HMRC requires the relevant instrument to be sent to it within six months of execution. Not every variation has to be sent to HMRC: GOV.UK confirms that HMRC generally does not need a copy where the variation does not change the Inheritance Tax payable.

No payment for the change. For the special tax treatment, the variation cannot ordinarily be made in return for money or money’s worth from outside the permitted estate arrangements. The tax provisions are not designed to convert an ordinary commercial sale of an inheritance into a retrospective testamentary gift. HMRC’s conditions should be checked by the professional drafting the variation.

Can a deed of variation settle a will dispute?

This is where it gets really useful.

Suppose three siblings dispute their late mother’s final will. A 2018 will gave one-third each. A 2025 will gave the entire estate to Sarah. Tom and James allege lack of capacity, undue influence and want of knowledge and approval. Sarah says the will is perfectly valid. The estate is worth £900,000.

They can spend years asking a judge which will wins. Or they can mediate.

A possible mediated settlement, for illustration only: Sarah £500,000; Tom £200,000; James £200,000.

None of the parties has necessarily conceded that the 2025 will was invalid, that there was undue influence, or that the earlier will should apply. They have simply agreed a commercial resolution. A variation or other estate settlement documentation can then be used, where legally and tax appropriate, to give effect to the agreed distribution.

The mediation does not have to answer “which will was valid?” if the family can first answer “what division are we prepared to live with?”

Does settling mean the will was wrong?

No. This is particularly important.

A beneficiary may agree to give up part of an entitlement for many reasons: litigation risk; legal costs; delay; family relationships; housing needs; uncertainty of evidence; commercial practicality; or simply a desire to bring the dispute to an end.

A deed of variation implementing a settlement does not necessarily establish that the will was invalid, that the claimant was right, or that the original beneficiary did anything wrong. It records a different agreed destination for the estate.

What about an Inheritance Act claim?

A variation can also be relevant where somebody is considering, or has brought, a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

For example: the will leaves everything to adult children; the deceased’s unmarried partner receives nothing; the partner claims reasonable financial provision; the children agree at mediation to redirect part of the estate to the partner.

Depending upon the circumstances, a deed of variation, settlement agreement, consent order or a combination of documentation may be required. Not every 1975 Act settlement should simply be documented as a deed of variation — the appropriate form depends on the claim, the tax treatment and whether court proceedings have been issued. Professional advice is essential.

See also: McDaniel v Talbot and Ilott v The Blue Cross.

What about proprietary estoppel?

Likewise, a dispute about an alleged promise concerning a farm, family business, house or other property may be capable of settlement through a negotiated redistribution.

See Winter v Winter and the Fabric Land dispute.

The legal documentation implementing a settlement will depend upon ownership; estate status; tax; company law; land registration; and the nature of the claim. The deed of variation may be part of the answer rather than necessarily the whole answer.

The flexibility of mediation

Court	Mediation
Valid / invalid	House to A
Claim succeeds / fails	Cash to B
X owns property / Y does not	Business to C
£X awarded	Life interest to partner
	Trust for a child
	Deferred sale
	Costs agreement
	Tax-advised variation

Court determines legal rights. Mediation can allow parties to design a broader settlement, subject to legal and tax advice.

When a deed of variation is not the answer

A variation is not a universal solution. It may not solve matters where:

• beneficiaries refuse to agree;
• a minor’s interests are affected without approval;
• the dispute concerns ownership of assets which never formed part of the estate;
• fraud or validity issues require a judicial determination;
• tax consequences make the proposed structure unattractive;
• more than two years have elapsed and retrospective tax treatment is important;
• or the estate has complexities requiring different documentation.

A deed of variation is a tool — not a magic wand.

The deceased’s wishes

One objection sometimes arises: “But isn’t varying the will disrespecting what Mum wanted?”

Sometimes that is a powerful consideration. But sometimes the beneficiaries themselves know that circumstances have changed. A parent may have made a will twenty years earlier. A beneficiary may already be independently wealthy. A vulnerable sibling may now need greater provision. Grandchildren may benefit more from capital now. A tax change may have altered the effect of the arrangement. Or a family may simply decide that preserving relationships matters more than insisting upon every legal entitlement.

Testamentary wishes matter. But once a person has died and beneficiaries have acquired rights, the law allows them considerable freedom to decide what they themselves do with those rights.

The two-year window and mediation

Checklist

Seven things to remember

1. 1

   You can vary an intestacy as well as a will

   Where there is no will, those entitled under the intestacy rules can also agree to redirect what they inherit.

2. 2

   The people giving up an entitlement must agree

   Anyone whose interest is reduced or otherwise adversely affected normally has to be a party to, or consent to, the variation.

3. 3

   You cannot simply take another beneficiary’s share

   A beneficiary can redirect their own entitlement. They cannot redirect somebody else’s without that person’s agreement.

4. 4

   For special IHT/CGT treatment, act within two years of death

   The variation must generally be in writing and signed by all relevant parties within two years of the date of death, with the necessary statement of intent.

5. 5

   A formal “deed” is not always technically essential

   A written instrument meeting the legal requirements can be enough, but professional drafting is usually wise — particularly where property, tax or a dispute is involved.

6. 6

   Minors and people lacking capacity require special care

   Where a minor, unborn or protected beneficiary is affected, court approval may be required.

7. 7

   Get legal and tax advice before signing

   The consequences of a variation depend on the statutory conditions and the individual circumstances of the estate.

General information only — not legal or tax advice.

The will can be the starting point — not always the end point

The person who died has made their decision. The beneficiaries now have legal rights. But legal rights can be compromised. They can be rearranged. They can sometimes be redirected.

In the right case, a deed of variation allows a family to turn an inheritance dispute into an agreed estate plan. That is particularly powerful in mediation. Instead of spending the estate deciding “who wins?”, the parties can ask: What outcome works? Who needs the house? Who wants the business? Who needs cash? Can the partner be protected? Can the children still inherit? Can tax be dealt with sensibly?

And then: can we vary the estate so that everyone can move on?

A will tells you what the deceased decided. A deed of variation can record what the beneficiaries have agreed.

Could a different division resolve the dispute?

ProMediate Inheritance, Probate & Trusts provides specialist mediation for disputes involving wills, intestacy, Inheritance Act claims, executors, beneficiaries, family homes, trusts and competing inheritance claims.

Where settlement involves changing how an estate is distributed, the parties’ legal and tax advisers can advise upon and prepare the appropriate deed of variation, settlement agreement, consent order or other documentation. The mediator remains neutral and does not provide the parties with legal or tax advice.

Related reading: How Not to Start an Inheritance War · Unmarried Partners and Intestacy · The Inheritance Wars series

This article provides general information about deeds of variation, wills, intestacy, taxation and inheritance disputes in England and Wales. It does not constitute legal, tax or financial advice. The tax treatment of a variation depends upon the statutory requirements and individual circumstances. Specialist legal and tax advice should be obtained before entering into a variation.