Succession: Scottish Prior and Legal rights: Legal rights: Young persons under 18
Until a young person has full legal capacity he or she cannot competently claim or discharge (IHTM12229) their legal rights (IHTM12221) in a parent’s estate, or elect (IHTM12227) between legal rights entitlement and testamentary provisions.
The age of full legal capacity has been 16 since 25 September 1991 by virtue of S1 (1) (b) of the Age of Legal Capacity (Scotland) Act 1991. Before that it was 18.
People between the ages of 16 and 18 entitled to legal rights have complete legal freedom to claim or discharge legal rights (or to elect between legal rights and testamentary provisions in their favour), as they please. But, a person aged 16 or over but under 18 can, before reaching age 21, apply to the court to have a ‘prejudicial transaction’ set aside.
S3 (1) of the 1991 Act provides that a person under 21 may apply to the court to set aside a ‘prejudicial transaction’ they entered into when of or over 16 years of age but under 18.S3 (2) defines a ‘prejudicial transaction’ as one which
- an adult exercising reasonable prudence would not have entered into in the circumstances of the applicant at the time of entering into the transaction, and
- has caused or is likely to cause substantial prejudice to the applicant
Before 25 September 1991 a young person had a four year period (termed the ‘quadriennium utile’) running from their 18th birthday in which to challenge and have set aside by the court, prejudicial transactions entered into personally or on their behalf before reaching age 18. Such transactions included any, shown to have been prejudicial to that person, involving dealings with rights to legitim (IHTM12221). This was abolished by the 1991 Act
For IHT, IHTA84/S147 (IHTM35211) was introduced to take account of the lack of legal capacity of children under full age entitled to legal rights. The provisions of this section are not affected by the 1991 Act and the relevant age remains 18.