The Gazette 1989

GAZETTE

DECEMBER 1989

with the same words will be

construed as referring to both non-

marital and marital children.

N.B Testators may still exclude

non-marital children by specifically

stating the bequest is to pass to his

legitimate issue only.

It was not considered proper

that the date of operation of the

Act for Wills should be the date of

death of the testator as testators

draft Wills in the light of rules of

construction that exist at the time

of the execution. The Act reverses

the rule of construction to include

non-marital children wherever a gift

to a child or children is given unless

the contrary intention appears. It

was suggested that to attempt to

make the date of death the

operative date would be contrary

to Article 43 of the Constitution.

Subsection (2)

states that certain

provisions of Section 3 of The

Legitimacy Act 1931 (which con-

ferred on legitimated children from

the date of their legitimation the

same rights as legitimate children)

shall not apply in respect of

dispositions made after the 14th of

June 1988.

However, it goes on to state that

these Legitimacy Act provisions do

still apply to protect legitimated

children's rights where the dispos-

ition refers only to persons who

are, or whose relationship is

deduced, through legitimate

persons ag. " - to my legitimate

child."

Subsection (3)

confers rights of

children adopted in Ireland

pursuant to Section 26 of The

Adoption Act 1952 on children

adopted abroad whose adopt-

ions are recognised under Irish

Law.

Subsection (4):

Where a Will is

made on or after the 14/6/1988

and a child is adopted after the

date of the Will, he is now

included in the bequest; hitherto

children adopted after date of

Will were excluded e.g. where a

gift is given " t o children of ny

son X", and Z is adopted after

the Will was made (after

14/6/'88), Z now is entitled to

share with other children of son

X whereas before he would have

been excluded.

Subsection (7):

A will (or other

disposition) made before the

14th of June 1988 shall

not

brought under the Ac t 's

operation just because the Will

was confirmed by a Codicil

executed after the 14th of June

1988.

Section 28

(applies to both

Wills and Intestacies).

Section 28 states that the

word 'issue' shall now be con-

strued in accordance with the

new S. 4A of the 1965 Act as

inserted by S. 29 of the 1987

Act. The word 'issue' now

includes non marital children,

therefore

O'B -v- S,

supra, is

overruled.

INTESTATE SUCCESSION -

SECTION 29

Section 29 amends Section 4 of

the Succession Act 1965 by

inserting a new Section 4A (1)

which states effectively that

all

relationships shall be deduced

for the purposes of the 1965 Act

irrespective of the marital status

of a person's parents.

With the

abolition of the status of illegiti-

macy non marital children have

equal succession rights w i th

marital children to the estates of all

their blood relations and vice versa.

Section 29 inserts a new

Section 4A (2) which sets up a

rebuttable

presumption that a

child whose parents have not

married each other and who dies

intestate is

not survived by his

father

by any person related to

him through his father.

SECTION 30

inserts after Section

27 of the Succession Act a new

Section 27A which sets up a

rebuttable presumption for the

purposes of determining who is

entitled to take out Probate or

Letters of Administrtion that a

deceased person was not

survived by any relative whose

parents have not married each

other or who is related to him

through such a person.

* Section 4A (2) of the 1965 Act,

as inserted by Section 29 of the

1987 Act, deals specifically with

the father of a non marital child,

where the said child died

intestate, and presumes the

father and all those claiming

t h r ough him to have pre-

deceased the child.

* Section 30 of the 1987 Act is a

far more general presumption

covering entitlements to Grants

of Probate and Administration,

presuming that where a non

marital child relationship affects

the title to a Grant all those

persons who would be entitled

to apply for a Grant on the basis

of that non marital relationship

shall be presumed to have

predeceased the deceased.

Question: How has the 1987 Act

a f f ec t ed Proba te Law and

practice in relation to

(i) Wills, (ii) Deaths Intestate?

Valuations for:

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