Commentary

I4.464 Legal rights of minors

IHT, trusts and estates

I4.464 Legal rights of minors

I4.464 Legal rights of minors

As previously mentioned (see I4.463) certain problems arose where legal rights claimants were not of full age. They could not disclaim until they attained majority and yet if they did not do so within two years of the death any subsequent disclaimer was treated as a transfer of value.

Legislation1 now exists to deal with the situation where a testator dies leaving a surviving spouse or civil partner and a person under the age of 18 (that is notwithstanding the provisions of the Age of Legal Capacity (Scotland) Act 1991) entitled to claim legitim in circumstances where, if the disposition to the surviving spouse or civil partner could take effect, there would be insufficient estate remaining to satisfy the legitim claim. There is, of course, nothing in the provisions which modifies in any way the obligation of executors to set aside funds to meet legitim claims in these or any other circumstances. The provisions do, however, in the limited circumstances to which they apply, allow the IHT position to be resolved and statutory certificates to be issued where tax is assessed on the basis provided2 or on the alternative basis3 for which the executors may elect, whilst at the same time leaving open a right to re-assessment of the IHT should the claimant claim or renounce, within the time provided4, contrary to the basis on which the IHT has been assessed.

IHTA 1984, s 147

IHTA 1984, s 147 is designed to overcome difficulty in the circumstances to

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