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GAZETTE
DECEMBER 1989
The Law relating to the Status of
Children born outside Marriage
and their Property Rights
PART I
The law governing the succession
rights of illegitimate persons and
succession rights to the estates of
such persons can be said to fall into
three distinct periods:-
1. The Common Law Position
(which applies to all deaths prior
to 19/5/'31).
2. The law between the Legitimacy
Act 1931 (19/5'31) and The
Status of Children Act 1987
(operative date for property rights
(Part V) 14/6/'88).
3. The law since the Status of
Children Act 1988 (all
Wills made
on or after
and
deaths intestate
on or after 14/6/'88)
1.
THE COMMON LAW
POSITION
The Common Law Position was
that of 'Nullus Filius' (i.e. a
bastard has no heirs). This actu-
ally means that the only next of
kin an illegitimate child could
have would be
his lawful
issue
and his succession rights were
confined thereto. He had no
succession rights to
either
of his
parent's estates (nor they to his),
nor to any other relations of his.
2.
THE LEGITIMACY ACT 1931
This is existing law for
all Wills
(and instruments creating Powers
of Appointment)
made before
14/6'88
and
all deaths Intestate
before that date.
The Act provides as follows:
S. 1 (i) If parents subsequently
marry each other the
child is legitimated,
(ii) A child cannot be legiti-
mated by above mar-
riage unless the father
and mother of such
person could have been
lawfully married to each
other at time of birth or
at some time during pre-
ceding 10 months.
S. 2 (i) The illegitimatge or his
issue can apply to Court
for a declaration.
S. 3 (i) Once legitimated he is
entitled to take normal
(legitimate) share
(a) in an estate of an
Intestate dying after
legitimation data
(b) under any disposition
coming into operation
By
Christopher Lehane, B.L.,
Assistant Probate Officer
after the date of legiti-
mation.
(c) under any entail cre-
ated after the date of
legitimation.
S. 3 (ii) If the right depends on
seniority he will so rank
from date of legitimation,
(iii) Disposition may express
a contrary intention
which would prevail.
S. 4 (i) Where a legitimated per-
son dies, normal suc-
cession rights apply, as if
legitimated person had
been born legitimate
S. 5 (i) If illegitimate dies before
marriage of both his par-
ents to each other
(which would have leg-
itimated him) but leaving
a spouse, children or
remoter issue who were
alive at the date of the
marriage then, for pur-
poses of the interests of
the spouse; child etc.
and to the spouse; child,
etc the illegitimate child
shall be deemed to have
been legitimated at the
date of the marriage
N.a
S. 9 (i) An illegitimate child (or,
if he is dead, his issue)
has succession rights to
his
Mother
but only
where she leaves
no
legitimate issue surviv-
ing.
(ii) Likewise, a mother has
succession rights to her
child as if he were born
legitimate
S. 11 (i) Date of legitimation
means the date of the
marriage leading to the
legitimation or where the
marriage occurred before
the 19/5/'31 then said
date
Schedule
1. Registrar General could register
a person as legitimated on in-
formation supplied by both
parents.
2. Father can on original registra-
tion of birth allow his name to
be entered as father.
3. Court could order Registrar to
register a man as father.
4. While putting a duty on parents
to re-register the child as
legitimated after marriage; failure
to do so does
not
affect his
legitimation.
The Succession Act 1965 did
not make any changes improving
the rights of illegitimate children.
Two major constitutional cases
were brought seeking to equalise
the rights of illegitimate children
with legitimate children, both of
which failed.
In the estate of NW
f
29/5/1979,
unreported.
McWilliam J.
Held:
"(i) General Rule at Common Law,
'NuNus FHius',
that a bastard
can have no kindred except
legitimate issue, has been
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