The Gazette 1978

GAZETTE

JULY-AUGUST

deceased mother or father. Unfortunately, though, the

Act was not extended to cover the position on the death

of a deceased brother or sister of the illegitimate child or

on the death of a more remote relative. It seems

somewhat illogical to enact legislation which in one

respect equates the succession rights of the legitimate and

illegitimate child and yet, at the same time, draws a clear

distinction. Hopefully, when our own Legislature extend

the succession rights of illegitimate children, they will take

a more forthright step.

Section 117 Succession Act 1965

Thus far, the writer has examined the limited and

somewhat confused rights of an illegitimate child on

intestacy. It is now proposed to examine briefly its

position (if any) under Section 117 of the 1965 Act.

Athough the full scope of this section has not yet been

examined by the Courts, many are hopeful that it will be

interpreted so as to include illegitimate children. The

section provides that:

(1) Where on application by or on behalf of a child of

a testator, the Court is of opinion that the testator has

failed in his moral duty

to make proper provision for

the child in accordance with his means, whether by his

Will or otherwise, the Court may order that such

provision shall be made for the child out of the estate as

the Court thinks just.

(2) The Court shall consider the application from the

point of view of a prudent and just parent taking into

account the position of each of the children of the

testator and any other circumstances which the Court

may consider of assistance in arriving at a decision that

will be as fair as possible to the child to whom the

application relates and to the other children."

The section then continues by including a clause

guaranteeing the surviving spouse's legal right, share or

bequest irrespective of whether or not an application is

made by a child under this section.

Section 117 must be read in conjunction with Section

110 of the same Act which states that:

in deducing any relationship for the purpose of this Part,

the provisions of the Legitimacy Act 1931 and of

Section 26 of the Adoption Act 1952 shall apply as they

apply in relation to succession on intestacy.

Whilst most writers

are of the opinion that this inter-

pretation section together with the general rule of con-

struction of such words as "children"

renders Section

117 obsolete in so far as applications by illegitimate

children are concerned, the present writer must admit that

he does not necessarily subscribe to that view.

There are two arguments that can be adopted in favour

of illegitimate children being accorded a right of

application under Section 117: the more favourable, from

the point of view of the right being extended to cover a

wide area of succession is based on the constitutional pro-

visions and it is proposed to examine this aspect in a sub-

sequent article; the other argument and that which will

now be proffered, is based on Section 110 of the 1965

Act.

Section 110 is the interpretation Section for Section

117.

However, what may be termed the "overall inter-

pretation section" for the 1965 Act

is not relevant to the

present argument, as it neither defines "child", "testator"

nor "parent". Unfortunately, those phrases are equally

not defined in Section 110, but we are told that in

deducing any relationship under Section 117, the

provisions of the 1931 Act and the Adoption Act 1952

"apply as they apply in relation to succession on

intestacy".

The difficulty, however, is in determining the actual

meaning of that phrase.

It is clear that it includes illegitimate children to some

degree, primarily because the side-note attached to

Section 110 refers to "legitimated, illegitimate and

adopted persons". The reader will recall that the 1931

Act

only accords the illegitimate child limited succession

rights to the estate of the mother. Consequently an

application by an illegitimate child under Section 117

(40) Some European countries, such as Germany, Austria and Italy

which introduced reform in this area in-the recent past, did not

totally abolish the distinction between legitimate and illegitimate

children with regard to inheritance. Other countries, such as

Switzerland and Luxembourg (Bill presently before Parliament)

abolished the distinction in this area. In Sweden and perhaps to

a somewhat lesser extent, in Denmark, the legal distinction

between legitimate and illegitimate children in every area of the

law, and not just succession, has to all intents and purposes

been abolished. Note the provisions of the European

Convention on the Legal Status Of Children Born Out Of

Wedlock, which provides in Article 9 for the abolition of the

distinction between legitimate and illegitimate children in

relation to rights of succession. The Convention has, to date,

been ratified by only two countries, Norway and Sweden.

(41) In

M±. and Á.W.

M±.

(High Court Unrep. 22/11/1977)

Costello J. stated that he did "not have to consider in these

proceedings whether an illegitimate child is entitled to apply

under the section for an order in its favour". He did, however,

state that when an application under this section is made by any

person irrespective, seemingly, of his status — "the Court

(having regard to the particular wording of sub-sect. 2) must

make an order that is just (and)

a just parent in

considering what provision he should make for each of his

children during his lifetime and by his Will must take into

account not just his moral obligations to his children and to his

wife

but all his moral obligations

In considering the

validity of the judgments which the testator made during his

lifetime and by his will and how he fulfilled his moral

obligations,

It Is obviously not relevant to consider only those

obligations which could be enforced under the Act

the

dependent parents of the testator to whom he owed a moral

duty would have no right under the section to claim that

provision be made for them out of their deceased son's estate

. . . . It follows, therefore, that in adjudicating on the claim of a

legitimate child the moral duty which the testator may have

owed to any illegitimate child he may have had must also be

borne in mind by the Court

And this is

whether or

not the illegitimate child is itself entitled to make a claim under

sub-section (1)". Whilst the point made by Costello J. relating

to the testator's moral duty is very valid and would seem to be a

correct reading of the section, it must be admitted, from a

purely practical point of view that there is a definite anomaly in

conceding on the one hand that a testator may have a moral

duty for his illegitimate child and yet at the same time, not

accord him, as would appear to be the present position, a

general right of application under Sect. 117. It means that the

law does not give full effect to what may be considered to be a

person's "general moral duty". Ironically, one of the aims of

the Succession Act 1963 in granting a spouse a legal right

share was to ensure that the deceased spouse could not

overlook this moral duty to his surviving spouse.

(42) See "Family Law in the Republic of Ireland" by Alan Shatter

at p. 336. "The Succession Act 1965, Sect. 117, Provision for

Children" by H. M. Fitzpatrick 110 ILT + SJ.

(43) See "Family Law in the Republic of Ireland" at p. 336.

"Russell Report" 1966.

(44) Sect. 3.

(45) Sect. 25.

(46) Sect. 9.