The Gazette 1984

GAZETTE

JULY / AUGUST 1984

Recent

Irish

Cases

Edited by

Gary Byrne, Solicitor

SUCCESSION ACT

Illegitimate child not "issue" of his or her

parent for the purposes of Section 67 of the

Succession Act, 1965 and accordingly

takes no share in the Estate on intestacy —

neither Section 67 or 69 of the Succession

Act are invalid having regard to the

provisions of the Constitution.

The deceased died a bachelor and

intestate on 5 March, 1975. He was

survived by four sisters and one brother

and one illegitimate daughter. The

Plaintiff was one of the sisters and the

Defendant was the illegitimate daughter.

On 5 September, 1975 the Plaintiff

applied to the Principal Probate Office

for Letters of Administration Intestate to

the estate of the Deceased and on 7

October a caveat to the Plaintiffs

Application was entered by the

Defendant.

Proceedings were issued by way of

Plenary Summons, seeking an order

setting aside the caveat and for an order

granting liberty to the Plaintiff to proceed

with the application for a grant of

administration to the estate. The

Defendant in her defence claimed a

declaration that she was "the issue" of the

deceased, and as such the person entitled

to the estate, there being no spouse. The

substantive claim in the case was that the

Defendant was entitled to succeed under

Section 67 of the Succession Act (which in

subsection (3) thereof provides that if an

intestate dies leaving issue and no spouse,

his estate shall be distributed among the

issue) or, alternatively, that by reason of

being illegitimate and therefore not being

entitled to succeed under Section 67, a

claim that Sections 67 and 69 of the

Succession Act were invalid having

regard to the provisions of the

Constitution. In view of this attack on the

provisions of the Act, the Attorney

General was added as a party to the

action and the main issue in the case was

between the Defendant and the Attorney

General on the validity of the two

Sections of the Act.

In the High Court, Mr. Justice D'Arcy

held that the Defendant was not entitled

to succeed on intestacy, not being issue

within the meaning of Section 67 and

found also that Sections 67 and 69 of the

Act were not invalid. The Defendant

appealed to the Supreme Court.

The Court first examined the meaning

of the word "issue" as used in the

Succession Act, and concluded that it did

not include an illegitimate child of a

deceased person. The Act does not define

the term "issue". Having regard to the

long-established acceptance in the law of

succession that the word "issue" referred

only to issue born within marriage and to

the fact that the Oireachtas in no way

qualified or defined the term and to the

fact that it did make express provision in

section 110 of the Act for children born

outside marriage having the right in

certain cases to succeed, it appeared to

the Court that the only reasonable

construction to put upon the word

"issue" in Sections 67 and 69 of the Act

was tht it referred solely to issue born

within marriage.

It therefore became necessary to

consider whether such statutory

discrimination between children born

inside and those born outside marriage in

the law relating to intestate succession

was invalid under the Constitution. The

Defendant attacked the statutory

provisions under Article 43 Section 1

subsection 2 of the Constitution (the right

to the private ownership of property),

under Article 40 Section 3 (property

rights) and under Article 40 Section 1 (all

citizens shall, as human persons, be held

equal before the law). The Court quickly

dismissed the arguments under the first

two Articles referred to, but considered at

length the argument under Article 40

Section 1, which was the Article

principally relied upon by the Defendant.

Following an exhaustive review of the

authorities, the Court found that the

Succession Act was designed to

strengthen the protection of the family as

required by the Constitution and for that

purpose to place members of the family

based upon marriage in a more

favourable position, than other persons

in relation to succession to property

whether by testamentary dispositions or

intestate succession. In doing so it

provided that in the event of intestate

succession children of the deceased born

outside marriage would not stand in the

line of succession, although they could

succeed to property by bequest, subject to

the particular provisions for the benefit of

the spouse of the deceased or his children

born within marriage. Having regard to

the constitutional guarantees relating to

the family, the Court held that the

differences created by the Succession Act

were not unreasonable, unjust or

arbitrary.

The Defendant having failed to

establish that Sections 67 and 69 of the

Succession Act were invalid having

regard to the provisions of the

Constitution, the Appeal was dismissed.

In the Goods of William WalkerDeceased,

Florence O'Brien, Plaintiff/Respondent

and MS Defendant/Appellant and the

Attorney General, Supreme Court (per

Walsh J.) 20 January, 1984 - unreported.

Karl Hayes

CONTRACT

Contract — Mareva Injunction — Juris-

diction — Balance of Convenience —

Principle in

Lister

-v-

Stubbs

applied.

Ap p l i c a t i on b r o u g ht f or an

interlocutory injunction to restrain

Defendants from disposing of or dealing

with the assets of the first named

Defendant ("Ranks") and for an Order

giving the Plaintiffs liberty to inspect the

books and records of Ranks so as to

ascertain what funds are available to

satisfy the Plaintiffs' claim in the action.

In 1978, Agreement was reached between

Ranks and the ITGWU covering

redundancy compensation. A subsequent

letter by the second named Defendant on

behalf of Ranks stated that Ranks would

not discontinue the 1978 Redundancy

Scheme "unless it could be shown to the

mutual satisfaction of the parties that

such payments were financially

unsustainable." The Plaintiffs refused to

accept redundancy proposals following

an announcement of the mills' closure in

1983. The Plaintiffs occupied one of the

mills. Accounts were furnished by Ranks

purporting to show that the terms of the

1978 Agreement were now financially

unsustainable but such accounts were not

accepted by the Plaintiffs as establishing

this.

The Court HELD — that there are

serious questions to be decided in the

proceedings and that there is definitely a

case to be made on behalf of the

Plaintiffs. The case made for granting the

injunction was that the association of

Ranks with its subsidiary companies and

its parent company was likely to enable

Ranks to dispose of its assets so that any

judgment obtained by the Plaintiffs

would be of no value.

The case made on behalf of the

Defendants was that there was no actual

evidence that Ranks were trying to get rid

of their property or were likely to do so,

that the Company is an Irish Company

with no record of defaulting on its

commitments, that an injunction in the

terms sought by the Plaintiffs would not

make the Plaintiffs secured creditors and

that the balance of convenience was all in

favour of refusing to grant an injunction,

particularly having regard to the

admitted perishable nature of the wheat

and flour which must be disposed of, and

that the Court should take account of the

behaviour of the Plaintiffs in refusing to

permit these commodities to be properly

preserved. The injunction sought is

known as a Mareva injunction (first