The Gazette 1989

GAZETTE

N O V E M B E R

1989

his estate to the mother of his child born outside marriage. He identified the child as his daughter in the Will when bequeathing her certain , lands. As the mother of the child predeceased the testator the resi- due of his estate fell to be adminis- tered as of intestacy. The niece consented to the application for a Grant by the daughter, corrobora- ting her evidence to the Court that all three had always lived together as a family and that he always acknowledged the applicant as his daughter. Held: Applicant was given liberty to apply for a Grant as his lawful daughter. The deceased died intestate on the 24th of December 1988 a bachelor without parent. A dispute arose between a sister born in wedlock and a brother born outside wedlock as to who was the more appropri- ate applicant for a Grant to their deceased brother's estate. The sister contended that as the brother had previously agreed to let her act as administrator and she had en- gaged solicitors to defend a poss- ible action against the estate, that she should extract the Grant. She never disputed his claim to a half share of the estate. The case was settled before the Court with the brother agreeing to allow the sister apply for the Grant and the sister agreeing to share the assets equally between them. Amendments to the Rules of the Superior Courts necessitated by the passing of the Status of Children Act 1987 (Statutory Instrument 20 of 1989) Orders 79 and 80 of the Rules which set out the procedures of the Probate Office and District Probate Registries respectively, were simil- arly amended by the substitution of new Rules for Rules 5 (1) (C), 5 (1) (E), 5 (5), 65 of Order 79 and Rules 6 (1) (C), 6 (1) (E), 6 (5), 63 of Order 80. As the Rules substituted in Order 80 are identical to those substituted in Order 79 only the latter are set out below. Order 79 Rule 5 (1) determines •the priority of each class of next of kin to a beneficial interest and their entitlement to a Grant in the estate of a person who dies intestate. Rule Re J M , 24 th July 1989, Gannon J., unreported.

5 (1) (E) which covers the order of priority of children now widens the definititon of children to include any person entitled by virtue of the Status of Children Act to succeed to the estate of the deceased. Rule 5 (1) (E) which covers the order of priority of parents states that while both normally have equal entitle- ments to a Grant the mother only is entitled where the presumption set out in Section 4A(2) of the 1965 Act applies. Order 79 Rule 5 (5), states that the provisions of the Adoption Acts 1952 - 1988, (as construed in accordance with Section 27 (3) of the Status of Children act 1987) shall apply in determining the title to a Grant as they apply to a devolution of property on intestacy. Order 79 Rule 65 states that no Grant may issue in the estate of a person with no known next of kin who dies either wholly or partially intestate without the consent of the Attorney General. SUMMARY It must be acknowledged that while the status of illegitimacy has not been totally abolished consider- able advancement in the rights of children born outside marriage has been brought about by the Status of Children Act. With the passing of the Act children born outside marriage are substantially in the same position w i th regard to guardianship, maintenance and property rights as children born in marriage. All legal discriminations against children born outside marriage have, as far as possible, been removed by the Act. As the Act applies only to Wills made on or after the 14th day of June 1988 and to the estates of persons dying intestate on or after said date, the distinction between children born in wedlock and those born outside wedlock will remain for some time to come. The pre- sumptions set out in Sections 4A(2) of the 1965 Act and Section 30 of the 1987 Ac t, wh i le necessary to reduce significantly the substantial obligation of inquiry on personal representatives to trace claimants under the act, will likewise preserve the aforesaid distinction in law. In guardianship matters the total abolition of the distinction between children born in wedlock and those born outside wedlock would necessarily have

entailed automatic joint guardian- ship for both unmarried parents. Obviously this would not have been in the best interest of the child and few would idsagree with the re- tention of the distinction in law to allow the Courts decide whether the father should be a joint guard- ian with the mother. In criticism of the Act I believe that the duty of inquiry on personal representatives to trace claimants under the Act could be more clearly defined therein. Despite the pre- sumptions set out in Sections 4A(2) and 30 aforesaid, since per- sonal representatives were not relieved from personal liability where they administer estates in ignorance of the claims of persons entitled under the Act, they would still appear to be under a reason- able duty of inquiry to trace such persons. Furthermore I believe that it is too restrictive to confine applications for declarations to children only where no other relief is sought, having regard firstly to the safeguards against frivolous and vexations applications which are contained in the Act and secondly to the general power in the Courts to refuse to grant declarations where the applicant fails to establish his locus standi in the matter. Part V of the Act proved to be the most controversial Part 10 thereof, taking more debating time in its passeage through the Oireachtas than any other part of the Bill. Fears were expressed that this legislation would result in a torrent of bogus claims by unscrupulous persons for declarations of parentage. After more than one year in operation, however, and bearing in mind that applications are restricted to Wills made on or after the 14th day of June 1988 and to deaths intestate on or after the same date, the statistics reveal that to date, at any rate, these fears have not been realised. The Probate Office and the District Probate Registries have to date processed only two Court applications by persons claiming succession rights pursuant to Part V and no application for a Grant has been received pursuant to said Part. Finaly, I would like to stress that brevity and expedience only have prompted me to use the words 'marital' and 'non marital' and I must apologise for their continued use throughout. These terms were

Contd. on p.447.

4 46