IHTM12227 - Succession: Scottish Prior and Legal rights: Legal rights: Election between testamentary and legal rights

Unless a formal election has been made in writing recording the choice made between testamentary and legal rights, (IHTM12221) it may sometimes be difficult to see that a true election has been made. This is often the case where the testamentary provisions, which appear to have been accepted are of little value compared to the legal rights entitlement. But you should bear in mind that as well as the financial considerations, the family circumstances as a whole can properly be taken into account in deciding whether there has been an election or not. For example, the children may want to ensure that their parents are comfortably provided for. You should refer any cases of difficulty to Technical.

You should also refer to Technical any case in which an election between testamentary benefits and legal rights is made by any person more than two years after a death where the values involved mean there is worthwhile tax at stake.