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
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