I often have Executors asking me what changes can be made to the distributions to beneficiaries in a Will when they are completing the administration of the Will maker’s Estate. While it is the Executor’s duty to uphold the Will maker’s testamentary intentions as much as possible, there is some flexibility for carrying out those wishes.
What changes can be made to distributions in a Will?
There are limits as to what changes can be made to distributions in a Will, and the consequences of these changes. Some changes I have been asked about are:
Changing a beneficiary’s distribution from ownership or part ownership of a property to a cash sum.
If you would like to change a beneficiary’s distribution from the Estate from ownership or part ownership of a property to a cash sum, there are requirements which must be followed to minimise the amount of stamp duty that may be collected by the Office of State Revenue.
The wording of the Will is very important in this situation as the Office of State Revenue will look to the Will to ensure that the change in the beneficiary’s distribution is still upholding the Will maker’s testamentary intentions.
Increasing the distribution to a beneficiary who was distributed less under the Will than other beneficiaries, in order to mitigate the risk that the beneficiary will contest the Will for further provision.
If you are the Executor of an Estate faced with the possibility of a Family Provision Application (ie. someone contesting the Will for further provision), it is very important that you seek legal advice from an experienced Estate litigation solicitor as soon as possible.
If the Executors and beneficiaries have agreed to increase the distribution to a beneficiary in order to mitigate the risk of the beneficiary making a Family Provision Application, I strongly recommend you retain an experienced Estate litigation solicitor to prepare a Deed of Family Arrangement formalising the agreement.
However, a Deed of Family Arrangement is not an iron-clad protection against a Family Provision Application. I have previously written about Family Provision Applications here.
Distributing more of the deceased Will maker’s chattels (household items and possessions etc) to one beneficiary than the others, even though the Will states that the entire Estate is to be distributed to the beneficiaries in equal shares.
If the Executors and beneficiaries agree to distribute more of the Will maker’s chattels to one beneficiary than the others, they may do so, provided the chattels in question have not been specifically gifted to a beneficiary in the Will.
I don’t know what the Will maker wanted to distribute because there is uncertainty in the wording of the Will – what should I do?
If there are more significant changes that need to be made to the distributions in a Will because the Will was improperly drafted or there is uncertainty about what is being bequeathed, you may need to apply to the Supreme Court for a declaration as to how to distribute the Estate, or some assistance in the interpretation of the Will.
What should I do from here?
If there is uncertainty in the Will about what distributions are to be made to whom, or if you would like to alter the distributions to beneficiaries in a Will, you should consult an experienced Estate litigation and administration solicitor. Please contact me should you require any assistance or advice.
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