The Gazette 1978

GAZETTE

JULY-AUGUST

that improve-ments are to be expected in the not too

distant future.

There is every possibility that if the Legislature do not

act of their own accord, they may in fact be forced to do

so if a potential litigant were successful in a constitutional

issue or failing this, a successful plea arising from a

breach of the European Convention on Human Rights. It

is proposed, at a later stage, to examine both of these

aspects in some depth.

Any rights possessed by illegitimate children are,as we

have seen, granted to them by statute. When examining

their succession rights it will be seen that the position is

exactly the same.

The relevant Act is the Legitimacy Act 1931 (herein-

after referred to as the "1931 Act"). However, this Act

must be read in conjunction with the intestacy provisions

in Part VI of the Succession Act 1965 (hereinafter

referred to as the "1965 Act").

Succession by Will

It is important to state at the outset that there are no

limitations whatsoever placed on an individual's right to

bequeath a gift to an illegitimate child. This contrasts with

an existing provision under Belgian legislation whereby

"illegitimate children may not receive by donation

inter

vivos

or by Will more than they (would have been) entitled

to receive (if the natural parent had died intestate)".

Whilst it is proposed to examine in this article the

succession rights of an illegitimate child on an intestacy

, it

is worth noting that if that child has been legitimated

-under the provision of the 1931 Act

or has been

adopted under the Adoption Act 1952 as amended,

will be granted the same rights as the legitimate child.

Succession Rights on Intestacy

Section 9 of the 1931 Act

outlines the limited

succession rights of an illegitimate child by stating that:

(1) Where, after the commencement of this Act, the

mother of an illegitimate child, such child not being a

legitimated person, dies intestate as respects all or any of

her real or personal property and does not leave any

legitimate issue her syrviving, the illegitimate child, or, if

he is dead, his issue, shall be entitled to take any interest

therein to which he or such issue would have been

entitled if he had been bom legitimate.

(2) Where after the commencement of this Act, an

illegitimate child, not being a legitimated person dies

intestate in respect of all or any of his real or personal

property, his mother if surviving shall be entitled to take

any interest therein to which she would have been

entitled if the child had been bora legitimate and she had

been the only surviving parent.

(3) This Section does not apply to or affect theright of

any person to take by purchase or descent an estate in

tail in real property.

Thus it will be seen that the rights relate solely to the

estate of the mother. No rights are granted to the estate of

the father nor to any brother or sister of the child nor to

more remote relations.

Unfortunately, in the light of the 1965 Act and more

particularly the legal right share of the surviving spouse,

the wording of sub-sections (1) and (2) must be deemed to

be somewhat inadequate. No reference is made to a

lawful spouse of an illegitimate child's mother and

consequently there must be some doubt as to the postion

when she, the mother, died leaving an illegitimate child

and a husband surviving. Under Section 9 (1), the

illegitimate child would be entitled to a share in the estate

but under Section 67 of the 1965 Act, the surviving

spouse would appear to be entitled to claim the entire

estate to the exclusion of the illegitimate child.

Undoubtedly, the surviving spouse is entitled to a

minimum of two-thirds of the estate

but can the

illegitimate child claim the remaining one-third under

Section 9(1) of the 1931 Act or will the husband receive

the entire estate under Section 67 (1) of the 1965 Act?

When one considers the provisions of the Con-

stitution, and in particular Article 40.1 and Article 43,

the argument would seem to clearly point to a right being

granted to the illegitimate child. However, the position

which is not at all clear, should be clarified by the

Legislature without delay and certainly before the Courts

are called upon to interpret the legislation in this area.

A further problem arising under Section 9(1) and (2)

of the 1931 Act relates to the rights which exist on the

death of an illegitimate female child who herself is

survived by an illegitimate child and by her mother. The

problem is best issustrated by the following example:

A, an unmarried mother, gives birth to B, an

illegitmate girl. Years later, B, gives birth to an illegitimate

child C. B dies leaving A and C surviving.

Under Section 9 (1), C is entitled to B's entire estate,

but equally, A is entitled to the entire estate under Section

9(2).

The problem, which is not one that is unlikely to

happen, cannot in the writer's opinion, be satisfactorily

resolved under the existing legislative provisions and,

accordingly, it is yet again a further area that requires

immediate clarification by the Legislature.

In England, the problem was resolved

by granting the

illegitmate child the same equal succession rights as was

granted to legitimate children in the estate of their

(31) The 1976 Act — "is part of a continuing process, some of

which has already begun but more has to come. One of the

areas in which reform has yet to be made ia in regard to the

illegitimate child, his rights to support, to inherit and his general

legal status." Dáil Debates Vol. 284 No. 1 p. 162. Mr. P.

Cooney.

(32) Article 908 of the Belgian Civil Code. A Bill has recently been

introduced into the Belgian Parliament, the aim of which ia to

reform substantially its law on illegitimacy. See Council of

Europe "Newsletter on Legislative Activities" No. 27.

(33) The Russell Report on the Law of Succession in relation of

Olegimate persons 1966 CMND 30S1 (it was this Report

which led to the English Family Law ReformAct 1969) recom-

mended that this

prima facie

rule of construction be

maintained, despite their having received many representations

which suggested that the rule often defeated the intention of the

testator/settler. However, the 1969 Acts (Sects. 15 and 16)

abolished the

prima facie

rule of construction. See "Family

Law in the Republic of Ireland" p. 336 particularly footnote

83.

(34) Sects. 1, 2 and 8 of the 1931 Act.

(35) Amended by enactments in 1964, 1974 and 1976.

(36) See Sect. 3 of the 1931 Act and Sects. 24 and 26 of the

Adoption Act 1952.

(37) Sect. 9 of the 1931 Act was reproduced from the equivalent

section of the English Legitimacy Act 1926.

(38) Under Sect. 67 (2) the surviving spouse is entitled to two-thirds

of the estate if there are children surviving and under Sect. 67

(1) to the entire estate if there are no children surviving.

(39) Family Law Reform Act 1969 Sect. 14.