428 / 482
GAZETTE
DECEMBER 1989
In summary when drafting
titles applying for Grants a
Solicitor can rely on Section
4A (2) and Section 30 pre-
sumptions without enquiring
about fathers or relatives
claiming non marital links to
the deceased; he can pre-
sume them all to have pre-
deceased until the contrary
is proved to him. Where the
Solicitor's applicant is a non
marital
ch i l d / nephew/
cousin
he can be described
in Oath as the lawful child/
newphew/cousin, the same
as any marital child/nephew/
cousin etc.
(We shall deal wi th the
necessary proofs for such
applicants below),
(ii)
Entitlement in Distribution
- Cen Solicitors rely on
Sections 4A (2) and 30
Presumptions when distri-
buting the estate?
In that the Grant follows the
interest the converse is also
true: the interest follows the
Grant. If you are entitled to
rely on the presumptions to
allow your applicants apply
for a Grant you should be
entitled to distribute the
estate accordingly amongst
them.
E.g. Solicitor relies on
Section 4A (2) that a father
of an intestate predeceased,
showing a title in the Oath
for Administrator as " A
bachelor without parent and
I am the lawful brother,"
where the mother prede-
ceased with no lawful sisters
other brothers or issue of
predeceased brothers or
sisters alive at the de-
ceased's death the applicant
takes the whole estate.
There are strong argu-
ments which can be advan-
ced from both sides as to
whether the presumptions
should or should not be relied
upon, particularly in the
distribution of the estate.
In Favour of Reliance on
the presumptions it can be
argued that:
1. There are 3 obligatory
common law proofs which
must be established to
presume in law the death
of a person,
firstly
that he
was unheard of for 7
years,
secondly
that there
are persons who would
have been likely to have
heard from him and obvi-
ously have not and
thirdly
that all due inquiries have
been made. Obviously as
none of these 3 proofs
was required by the Act
the statutory presumpt-
ions of death can be
availed of much more
easily than the common
law presumption.
2. Unlike the common law
presumption of death
which requires a court
order, these presumptions
do not but arise automati-
cally from the Act.
3. These presumptions are
rebuttable presumptions
of law, which are pre-
sumptions which must be
made in the absence of
evidence to the contrary.
It can therefore be argued
that the onus clearly rests on
the non marital father and
non marital next of kin to
assert their rights (i.e. to
rebut the presumption of
death) and not on the marital
next of kin to make any
extensive inquiries.
It can be argued against
ralianca on tha presumpt-
ions that:
1. As the presumptions are
rebuttable by evidence to
the contrary it follows that
if the non-marital next of
kin (e.g. non marital father/
uncle) who survived the
deceased could prove that
the Grantee, at the time of
the extraction of the grant,
actually knew of the exist-
ence of such non marital
next of kin yet excluded
them in the distributions of
the estate, such Grantee
could find himself penal-
ised for any losses sus-
tained or costs incurred
through his actions.
2. If the proposed applicant
does not actually know
whether the non marital
father (hereinafter simply
called the father) or non
marital next of kin with
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