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GAZETTE
DECEMBER 1989
1. Wills
(S. 27 - Wills made on or
after the 14/6/1988)
(i)
Title to Grant
One's entitlement to prove a
Will is affected by the Act
only in the situation where
the executor is not applying
and the residue is left e.g.
" t o my children" or " t o my
issue" which if the Will was
made after the 14/6/1988
will now include (unless the
contrary intention appears
therein) non marital children.
Non marital children equally
with marital children of the
testator will be residuary
legatees and devisees under
the Will and entitled to the
Grant, with the Executor not
applying,
(ii)
Entitlement in Distribu-
tion
As stated above, unless the
Will specifically gives a gift
to his marital (legitimate)
'issue'/'children' all refer-
ences to children or issue
will now include (for Wills
made on or after 14/6/1988)
non marital children and
they .will take equally in
distribution,
(iii)
Applications under Sect-
ion 117 of the Succession
Act 1965
Section 31
of the 1987 Act
gives non marital children of
Testators dying af ter
14/6/1988
a right to make
an application under S. 117
of the Succession Act.
By allowing the date of
the testator's death as the
operative date many more
non marital children may
benefit under S. 117 than
can benefit under S. 27 of
the 1987 Act, which only
applies to
Wills made after
14/6/1988.
2.
INTESTACIES
(S. 29 - all
deaths Intestate on or after
14/6/1988).
In deducing any relationship
with regard to an intestate dying
on or after the 14/6/1988 no
regard shall be had to the marital
status of a person's parents.
Having equalised the rights
under law of all children whether
born within or outside marriage
the Act goes on to set out the
two presumptions mentioned
above: (1) Section 4A (2) of the
1965 Act, as inserted by Section
29 of the 1987 Act, which sets
up the specific presumption that
the the father of a non marital
child and all persons claiming
through him predeceased the
child, unless the contrary is
shown, (2) Section 30 of the
1987 Act sets out the general
presumption when a person is
applying for a Grant, that the
deceased was not survived by
any person whose parents have
not married each other or by any
person claiming through such
person, unless the contrary is
shown. The purpose of these
presumptions is to reduce the
effect on existing Probate Law
and practice of the equalisation
of rights of marital and non
marital children.
To understand the effect of
the 1987 Act on Intestate Law it
is necessary to know how far
Solicitors can rely on these 2
presumptions when seeking to
establish (1) Entitlement to
Grants and (ii) Entitlements in
Distribution.
(i) Title to Grant
The Solicitor may rely on the
presumption set out in
Section 4A (2) of the 1965
Act that the father of an
intestate non marital child
predeceased the child unless
his applicant actually knew
that the father had survived
him. The onus is otherwise
on the father, or those
claiming through him, to
bring to the attention of the
applicant that the father
survived the child.
The position is the same
with the wider Section 30,
1987 Act, presumption and
the Solicitor may presume all
next of kin, claiming a non
marital link to the deceased,
to have predeceased the
deceased until the contrary
is proved to him.
The practical effect of
these presumptions on the
drafting of titles is illustrated
in the following examples:
(a)
A bachelor without
father
(or a bachelor without
parent - where the mother
predeceased). A Solicitor
may draft this title to allow a
brother apply for a Grant not-
withstanding his lack of
knowledge of whether the
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father survived. He can rely
on the Section 4A (2) pre-
sumption that the father
predeceased.
(b)
A bachelor without
parent brother or sister.
Relying on the Section 30
presumption that a deceased
person is presumed not to
have been survived by any
relative whose parents have
not married each other or
who is related to him through
such a person, it is not
necessary in drafting titles to
clear off the possibility that
a bachelor or spinster might
have had any issue. There is
therefore no need to change
existing drafting of these
titles which will still read "a
bachelor (spinster) without
parent - and I am the lawful
brother."
(c)
A Widower - and I am
the LAWFUL son
A Bachelor - and I am
the LAWFUL son
It was mooted in Probate
circles that the word
"lawful'
would have to be
dropped in titles to ensure no
distinction would be made
between 'marital child titles'
and 'non marital child titles'
the former reading " a
Widower and I am the
lawful
son"
the latter reading "a
Bachelor and I am
the son."
The approach adopted by the
Probate Officer is to adopt
the word
'lawful'
for all non
marital children applying,
who have established their
rights to a Grant. This is in
keeping with the spirit of the
Act which preserves existing
practice as much as possible.
The correct title for a non
marital child to his father is
therefore
"A Bachalor -
and I am tha lawful son."
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