IHTM12242 | Succession: Scottish Prior and Legal rights: Example of legal rights calculations: The succession

Under Scots law, George’s widow, children and grandchildren (by representation (IHTM12253) of a predeceasing child) are entitled to certain legal rights (IHTM12221) in his estate, despite the terms of his Will. Molly is not entitled to any prior rights (IHTM12211) as this is a fully testate estate that is fully disposed of by Will.

Legal rights are due only from George’s own estate and specifically from his moveable estate (IHTM12225). The extent of George’s moveable estate determines the level of the legal rights entitlement of his widow, children and grandchildren and these rights, if claimed, are payable from that free moveable estate. Any legal rights claims have to be settled before the cash legacy and the residuary bequest.

George’s life interest in his father’s trust has no relevance in the calculation of the legal rights’ entitlement. But, the existence of this interest and the manner in which the trust capital is due to be distributed following George’s death, perhaps helps us to understand why George has drawn up his Will in this way. This may also help explain the actions of the respective family members in dealing with their entitlement to claim legal rights.

Neither has George’s interest in ‘the Husband’s Fund’ of the marriage settlement any relevance in the calculation of legal rights. But, it is worth noting that an ante nuptial marriage contract deed sometimes contains a provision, by the couple about to marry (in this instance George and Molly), specifying how their prospective legal rights in each other’s estates are to be dealt with on the death of either of them.

So the estate subject to any legal rights claims is George’s moveable estate valued at £2,400,000 - on the basis that the value used here is the value for Inheritance Tax.