The third bullet under the guidelines at IHTM35021 sets out two requirements, the
Original 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.
Example
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.
