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GAZETTE
DECEMBER 1989
priority to him (hereinafter
called the non marital next
of kin) survived the de-
ceased, with reasonably
simple inquiries he would
be able to find out whether
they did survive. They may
have lived close to the
deceased or kept in con-
tact with him where in
these circumstances they
would hear of his death
and seek to assert their
new rights conferred by
the 1987 Act, thereby
obliging the Grantee to
recall the assets for
redistribution.
Furthermore Section 46
(3) of the 1987 Act pre-
sumes a man, whose
name appears as father of
a child on a birth certifi-
cate, to be the lawful
father of that child. Such a
man, presumed by the Act
to be the father, would
probably not even require
a Court Order to seek to
have the first Grant re-
voked and cancelled and
the distributed assets
surrendered to him.
Having considered the argu-
ments both for and against re-
liance on the presumptions it is
worth noting the recommenda-
tions of the Law Reform Com-
mission on this point, as set out
in pages 142 , 143 and 144 of the
Law
Re f o rm
Commi ss i on
Report on Illegitimacy (LRC 4 -
1982) (previously quoted) on
which the Act was based.
Under the heading "Protection of
Trustees Admi n i s t r a t o rs and
Executors," the Commission first
poses the problem that unless
some special protection is given to
these people they will be under a
substantial obligation of enquiry
and conduct, the scope of which
could only be ascertained by each
question in turn having to come to
Court for decision. In favouring the
adoption of the English and New
Zealand approach of exempting the
Trustees Executors and Adminis-
trators from an obligation to
enquire into whether there are
claimants born outside marriage
and relieving them from liability for
distributing the property in disre-
gard to the claims of such persons
the Commission fully acknowl-
edged that the result of any such
provisions would be to sacrifice the
rights of children born outside (but
not inside) marriage in the interest
of practical administrative conven-
ience, but felt it was necessary in
the circumstances.
The Commission made, in all,
3 recommendations on this issue,
the first one being the only one
actually enacted by the 1987 Act,
in the form of the presumptions set
out in Section 4A (2) of the 1965
Act (as inserted by Section 29 of
the 1987 Act) and Section 30 of
the 1987 Act. The Commission, as
stated above, recommended
"that
legislation should include pro-
visions exempting trustees.
Executors and Administrators
from the obligation to enquire as
to whether there are claimants
born outside marriage."
The
aforesaid presumptions do relieve
them from enquiring as to whether
there are such claimants by pre-
suming that all such persons have
predeceased.
The Legislature did not enact the
further 2 recommendations of the
Commission, the first being that
Trustees, Executors and Admin-
istrators should also be relieved
f r om liability whe re they
administer estates in ignorance
of claims of non marital next of
kin.
The second recommendation
was t hat
these exemp t i on
provisions should not prejudice
the right of any non marital next
of kin to follow the property, or
any property representing it, into
the hands of any purchaser for
value who may have received it.
There was no need for the enact-
ment of the second recommenda-
tion guaranteeing the right of non
marital next of kin to follow proper-
ty erroneously transferred, or any
property representing same, into
the hands of any person other than
a purchaser for value. Such a right,
besides being a well accepted prin-
ciple at Common Law, is already
specifically conferred on all unpaid
beneficiaries by Section 59 of the
Succession Act 1965.
The dropping of the other recom-
mendation, however, is significant.
The Legislature's failure to enact
the recommendation relieving per-
sonal representatives from liability
where they administer estates in
ignorance of the claims of non
marital next of kin must be re-
garded as weakening somewhat
the reliance that personal repre-
THE
SOLICITORS'
BENEVOLENT
ASSOC I AT I ON
A CASE IN NEED
Mrs. "X" is in her late 40's, she is the
widow of a Solicitor, has five children under
21. Her only income is a widow's pension
and family allowance. She has to provide
for her family and maintain a home. She
faces this enormous responsibility alone.
Who can she turn to for help? — The
Solicitors' Benevolent Fund.
The Solicitors' Benevolent Association
assists such cases - and many others where
the age of dependants of members of the
profession ranges from "under 10" to
"over eighty". The Committee of the
Association meets monthly and its work
covers the entire country, north and south.
The Committee funds come from annual
subscriptions from members of the Law
Society of Northern Ireland and The Incorpor-
ated Law Society of Ireland, together with
additional subscriptions received from Bar
Associations, and individual Solicitors or
firms of Solicitors. In recent years the calls
on the Association's resources have become
more numerous and this year the Committee
faces a relatively large deficit. It urgently
needs extra funds. Subscriptions can be
sent to the Secretary, Ms Clare Leonard,
The Solicitors' Benevolent Association,
40 Lr. Fitzwilliam Square, Dublin 2, or c/o
The Law Society, Blackhall Place, Dublin 7.
sentatives may place on the
presumptions.
The relief from liability was
dropped from the Bill with all
parties agreeing in the Dail that it
was overprotective of personal
representatives. The Minister, in
proposing the amendment of the
Bill, stated that the relief would
have discriminated against non
marital next of kin in that it would
have left personal representatives
free to distribute an estate without
making any effort to trace persons
who would have a claim under the
Act. Furthermore, he stated he was
doing so on legal advice that the
relief from liability was unnecess-
ary having regard to the protection
afforded to personal representa-
tives under Section 49 of the
Succession Act 1965, once the
personal representatives published
the apporpriate notices.
Section 49 applies equally to
unknown next of kin as it does to
creditors of an estate (See Re
Aldhous [1955] 2 All E.R. 80).
There are two points to note
from the Dail's deliberations on this
matter. Firstly, despite enacting
two presumptions enabling per-
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