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The basic proposition is that a person who claims legal rights forfeits entirely the testamentary provisions in his or her favour. When the extent of the estate is known, persons entitled to claim are asked to elect between acceptance of the testamentary provisions and legal rights.

The terminology arising from testate cases might indicate that legal rights must be claimed, but the strict position is that legal rights attach to the free movable succession at common law and must be paid unless disclaimed or, in testate cases, an election is made in favour of the testamentary provisions.

It has been stated¹ that an election not to claim legal rights would not be chargeable to IHT if the election was made within two years of the death and otherwise satisfied² the provisions relating to variations or disclaimers of testamentary dispositions; and that where those provisions do not apply, an election not to claim legal rights or ultimate failure to do so would be a transfer of value and might