IHTM35154 | IHT implications of an Instrument of Variation: effect of not coming within s.142

From HM Revenue & Customs · Inheritance Tax Manual

A variation or disclaimer may not come within , because, for example

  • there is extraneous consideration ()

  • there is insufficient link with the original disposition (), or

  • there is no valid statement of intent () (for variations effected on or after 1 August 2002) or

  • there is no valid election () (for variations executed before 1 August 2002)

Or a variation or disclaimer may be only partly within , for example

  • where it also deals with property which is not part of the death estate () for the purposes of or

  • where it purports to reduce the benefits of persons who are not parties to it ().

If a variation does not come within , or to the extent to which it does not come within , it operates for IHT purposes in the same way as any other transaction affecting an individual’s own property. It may be a transfer of value and will not be written back into the will or other disposition for the purpose of tax on the death. As a transfer of value it will be either a potentially exempt transfer () or a transfer chargeable when made () and will cumulate should the beneficiary making the instrument fail to survive for 7 years after the date of the instrument.

The above also applies to any disclaimer which is not within , except that in the alternative a disclaimer of an interest in settled property may come within .