It would appear that the TOD account forms part of the estate’s net moveable estate and as such is to be included within any calculation of legal rights claims against the estate.
Section 36(2) of the 1964 Act defines “estate” as referring to the whole estate “belonging to the deceased at the time of his death or over which the deceased had a power of appointment…”. This section of the 1964 Act makes explicit provision for special destinations and powers of appointment in respect of heritable property, but not moveable property.
On the basis of the ToD Agreement, it would appear that the account belonged to the deceased at the time of his death and that he retained a power of appointment over the account. As such, it would be part of the deceased’s estate for the purposes of the 1964 Act.
note: Section 10(2) and 36(1) of the Succession (Scotland) Act 1964 (the “1964 Act”) have also been referred to support the view that the TOD is not beyond the legal rights claims
Would you agree with this?
Also, Under Scots law the only way to defeating legal rights claims in relation to moveable assets after death is by a change in the ownership and/or the control of the asset in such a way that the asset is no longer owned or controlled by the deceased immediately prior to his/her death and/or that he/she has lost the beneficial interest in the asset prior to his/her death. The argument is that he had not lost control and owned the account immediately prior to his death.
Do you agree with this?