468 / 482
GAZETTE
N O V E M B E R
1989
his estate to the mother of his child
born outside marriage. He identified
the child as his daughter in the Will
when bequeathing her certain ,
lands. As the mother of the child
predeceased the testator the resi-
due of his estate fell to be adminis-
tered as of intestacy. The niece
consented to the application for a
Grant by the daughter, corrobora-
ting her evidence to the Court that
all three had always lived together
as a family and that he always
acknowledged the applicant as his
daughter.
Held:
Applicant was given liberty to
apply for a Grant as his lawful
daughter.
Re J M , 24 th July 1989,
Gannon J.,
unreported.
The deceased died intestate on the
24th of December 1988 a bachelor
without parent. A dispute arose
between a sister born in wedlock
and a brother born outside wedlock
as to who was the more appropri-
ate applicant for a Grant to their
deceased brother's estate. The
sister contended that as the brother
had previously agreed to let her act
as administrator and she had en-
gaged solicitors to defend a poss-
ible action against the estate, that
she should extract the Grant. She
never disputed his claim to a half
share of the estate. The case was
settled before the Court with the
brother agreeing to allow the sister
apply for the Grant and the sister
agreeing to share the assets equally
between them.
Amendments to the Rules of the
Superior Courts necessitated by
the passing of the Status of
Children Act 1987
(Statutory Instrument 20 of 1989)
Orders 79 and 80 of the Rules
which set out the procedures of the
Probate Office and District Probate
Registries respectively, were simil-
arly amended by the substitution of
new Rules for Rules 5 (1) (C), 5 (1)
(E), 5 (5), 65 of Order 79 and Rules
6 (1) (C), 6 (1) (E), 6 (5), 63 of Order
80. As the Rules substituted in
Order 80 are identical to those
substituted in Order 79 only the
latter are set out below.
Order 79 Rule 5 (1) determines
•the priority of each class of next of
kin to a beneficial interest and their
entitlement to a Grant in the estate
of a person who dies intestate. Rule
5 (1) (E) which covers the order of
priority of children now widens the
definititon of children to include any
person entitled by virtue of the
Status of Children Act to succeed
to the estate of the deceased. Rule
5 (1) (E) which covers the order of
priority of parents states that while
both normally have equal entitle-
ments to a Grant the mother only
is entitled where the presumption
set out in Section 4A(2) of the
1965 Act applies.
Order 79 Rule 5 (5), states that
the provisions of the Adoption Acts
1952 - 1988, (as construed in
accordance with Section 27 (3) of
the Status of Children act 1987)
shall apply in determining the title
to a Grant as they apply to a
devolution of property on intestacy.
Order 79 Rule 65 states that no
Grant may issue in the estate of a
person with no known next of kin
who dies either wholly or partially
intestate without the consent of
the Attorney General.
SUMMARY
It must be acknowledged that
while the status of illegitimacy has
not been totally abolished consider-
able advancement in the rights of
children born outside marriage has
been brought about by the Status
of Children Act. With the passing of
the Act children born outside
marriage are substantially in the
same position w i th regard to
guardianship, maintenance and
property rights as children born in
marriage. All legal discriminations
against children born outside
marriage have, as far as possible,
been removed by the Act.
As the Act applies only to Wills
made on or after the 14th day of
June 1988 and to the estates of
persons dying intestate on or after
said date, the distinction between
children born in wedlock and those
born outside wedlock will remain
for some time to come. The pre-
sumptions set out in Sections
4A(2) of the 1965 Act and Section
30 of the 1987 Ac t, wh i le
necessary to reduce significantly
the substantial obligation of inquiry
on personal representatives to
trace claimants under the act, will
likewise preserve the aforesaid
distinction in law. In guardianship
matters the total abolition of the
distinction between children born in
wedlock and those born outside
wedlock would necessarily have
entailed automatic joint guardian-
ship for both unmarried parents.
Obviously this would not have been
in the best interest of the child and
few would idsagree with the re-
tention of the distinction in law to
allow the Courts decide whether
the father should be a joint guard-
ian with the mother.
In criticism of the Act I believe
that the duty of inquiry on personal
representatives to trace claimants
under the Act could be more clearly
defined therein. Despite the pre-
sumptions set out in Sections
4A(2) and 30 aforesaid, since per-
sonal representatives were not
relieved from personal liability
where they administer estates in
ignorance of the claims of persons
entitled under the Act, they would
still appear to be under a reason-
able duty of inquiry to trace such
persons. Furthermore I believe that
it is too restrictive to confine
applications for declarations to
children only where no other relief
is sought, having regard firstly to
the safeguards against frivolous
and vexations applications which
are contained in the Act and
secondly to the general power in
the Courts to refuse to grant
declarations where the applicant
fails to establish his
locus standi
in
the matter.
Part V of the Act proved to be the
most controversial Part 10 thereof,
taking more debating time in its
passeage through the Oireachtas
than any other part of the Bill. Fears
were expressed that this legislation
would result in a torrent of bogus
claims by unscrupulous persons for
declarations of parentage. After
more than one year in operation,
however, and bearing in mind that
applications are restricted to Wills
made on or after the 14th day of
June 1988 and to deaths intestate
on or after the same date, the
statistics reveal that to date, at any
rate, these fears have not been
realised. The Probate Office and
the District Probate Registries have
to date processed only two Court
applications by persons claiming
succession rights pursuant to Part
V and no application for a Grant has
been received pursuant to said Part.
Finaly, I would like to stress that
brevity and expedience only have
prompted me to use the words
'marital' and 'non marital' and I
must apologise for their continued
use throughout. These terms were
4 46
Contd. on p.447.