IHTM12253 - Succession: Scottish Prior and Legal rights: Scottish Prior and Legal rights: Meaning of representation

Where a child has died before their parent, that child’s surviving children (the grandchildren) or remoter issue, are entitled, by ‘representation’ to share the same right to legitim as the deceased child would have had. Where the survivors entitled to legitim on a person’s death are, for example, 2 children and 2 grandchildren (children of a child who predeceased the deceased) division of the legitim fund is ‘per stirpes’ or according to the relationship level of the survivors. The nearest level of survivors to the deceased person fixes the basic share taken in the legitim fund - in this instance that level is the children and the basic share taken, one third. The 2 children are each entitled to one third and the grandchildren share equally the one third their deceased parent would have taken.

However, where all of the survivors are of the same level, they share in the legitim fund ‘per capita’ or per head. If all of the deceased’s 3 children have died before they do leaving grandchildren only surviving, being all of the same level, the grandchildren, under ‘per capita’ division, are entitled to share equally in the legitim fund. This means that if there are 11 surviving grandchildren, each will be entitled to receive one eleventh share.