The Gazette 1989

GAZETTE

DECEMBER 1 9 8 9

sonal representatives to presume

all possible claimants under the Act

to have predeceased, the obvious

intention in dropping the relief from

liability for personal representatives

in these cases was to ensure that

they were still under a reasonable

duty of inquiry to trace such

persons. Secondly, personal repre-

sentatives, as was stated, may still

cover themselves from personal

liability by publishing Section 49

notices seeking non marital next of

kin to assert their rights.

Besides being very costly,

Section 49 notices in these cir-

cumstances may well give rise to

bogus claims being made against

an estate. The solicitor would

obviously require such claimants to

seek declarations of parentage in

the courts. In the absence of such

applications, at what stage can the

solicitor ignore such claims and rely

on the presumptions? In such in-

stances where the solicitor feels

the claim clearly will not succeed,

he may apply to the Probate Judge

for directions without issuing the

usual special summons in the High

Court for an order of the Chancery

Court to enable him to proceed with

his administration of the estate.

In the vast majority of cases,

however, personal representatives

will know, or with reasonable

inquiries will be able to find out, if

there was any child born outside

marriage who would be a potential

claimant under the Act. If they are

quite positive no such claim could

exist there would, in my opinion, be

no need to publish Section 49

notices. It is accepted practice in

Probate matters generally that

where a personal representative

has acted at all times

bona fide

accordance with statute he will not

be held personally liable and any

costs and losses thereby incurred

in his administration will be taken

from the estate.

It is suggested thet in cir-

cums t ences whe re a c l a im

could arise under the Act, a

prudent Solicitor would adopt

the following guidelines:

(1) If his applicant knew the father

or non marital next of kin sur-

vived the deceased he cannot

rely on the presumptions. Once

he knows they survived, neither

can he publish S.49 notices and

rely on the fact that the notices

have not been replied to (See Re

Beatty (1892) 29 LR Ir 290).

(2) If with reasonable inquiries it

could be easily ascertained

whether the father or non

marital next of kin survived the

deceased, for practical reasons,

to avoid a lot of unnecessary

trouble later when they would

assert their rights, it would not

be advisable to rely on the pre-

sump t i ons w i t h o ut f i r s t ly

making those inquiries and pub-

lishing the appropriate S.49

notices.

(3) If reasonable inquiries would

not reveal a claimant under the

Act because, for example, the

identity of the father is un-

known and no name of a father

appears on the birth cert then

the presumptions can be relied

upon to the full, as regards both

entitlement to Grants and in the

distribution of the estates. The

onus clearly rests on the non

marital father and non marital

next of kin in such cases to

assert their rights. If the marital

next of kin extract a Grant and

wait 6 years any possible claims

against them will be statute

barred.

Part 2 of this article will appear in

the December, 1989

Gazette.

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island Street, Dublin S.Tel:- (01) 773308.

The Solicitors

Benevolent

Association

As most Practitioners know, the

Solicitors Benevolent Association

includes Solicitors who are mem-

bers of both The Law Society of

Northern Ireland and the Incorpor-

ated Law Society of Ireland. In

September last the Directors held

their meeting at Law Society House,

Belfast. The attendance included

the Chairman, John M. O'Connor,

and the Secretary, Clare Leonard

(Dublin), and Directors from

Northern Ireland, Thomas A.

Burgess and J. Brian Garrett.

Assistance to beneficiaries is pro-

vided on a confidential basis and so

meetings of the Directors are private

affairs. However, after the Sept-

ember meeting the Secretary, Clare

Leonard, mentioned two specific

news items to highlight the wide

ranging support which is now being

provided for the S.B.A. by those

connected with the profession - in

addition to annual subscriptions.

Colin Haddick, President of the Law

Society of Northern Ireland, when

attending the A.B.A. Conference in

Honolulu and the Australian Legal

Convention in Sydney last August

participated in both a 10 km run and

a 14 km run, and the proceeds of his