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GAZETTE
JULY-AUGUST
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would appear to be limited to the case where she has
failed to make proper provision for the child in her will
and is not survived by any lawful issue. If the mother
is only survived by her husband and the illegitimate child,
then, for the reason earlier outlined, the child would most
probably be entitled to make an application under this
section.
It shoud be pointed out at this stage that whatever
situation one is discussing under the provisions of Section
117, and it need not necessarily be in relation to
illegitimate children, the section may only be invoked if
the deceased has died wholly or partly testate. One would
not, seemingly, be entitled to rely on section 117 where
the deceased died wholly intestate. This is because the
section relates to part IX of the Act and by virtue of
section 109, that Part applies where:
a person dies wholly
or
partly testate leaving a spouse or
children or both spouse and children.
It would seem, however, from a reading of that section
that where the deceased died partly intestate and partly
testate, the application under section 117 can still relate
to the intestate portion of the estate and not just the
testate portion. Accordingly, it may be stated that only if
the illegitimate child's mother dies wholly intestate, is he
excluded from making an application under section 117;
i.e. he must then rely entirely on the provisions of the
1931 Act as discussed earlier.
Where the illegitimate child's mother dies wholly or
partly testate
and is survived by lawful issue,
can he
make an application under Section 117? The better
answer, and again, excluding the constitutional argument,
would appear to be in the negative.
The first argument which one would make in support
of that assertion, would be that if the Legislature had
intended to grant illegitimate children equal rights in
relation to an application under Section 117, then they
would have made specific provision in this respect.
Nonetheless, that argument
per se
is not sufficient to
justify a negative response. However, further support
may be obtained from a comparison of a similar provision
to Section 117, under English law.
Under Section I of the Inheritance (Family Provision)
Act 1938
47
it is provided that an application may be
made to the Court where
the will
4
* does not make reasonable provision for the
maintenance of (the) dependant.
Whilst the words "dependant", "son" and "daughter"
were defined in that Act, there was no reference to
illegitimate children.
49
However, it was held in the case in
Re Makeir?°\hdX
an illegitimate child has no right of
application under this section.
There is no similar provision in Scotland to our Section
117 or to Section I of the English Act of 1938 although
there exists the notion of "legitim" which is akin to a legal
(47) Amended by the Family Provision Act 1966 and the Family
Law Reform Act 1969.
(48) This phrase was extended by the Family Provision Act 1966 to
include a case when the deceased died intestate.
(49) The Russell Report 1966 recommended that the illegitimate
child be granted "the same rights as a legitimate child to apply
in the estate of either parent under the Inheritance (Family
Provision) Act 1938." Their recommendation was adopted in
the 1969 Act, Sect. 18.
(50) I.R. (1955) Ch. D 194.
(51) Paragraph 15.
(52) These rights were later extended by the Family Law Reform
Act 1969.
right share in favour of a child of a deceased parent.
In the Russell Report 1966
51
it was stated that an
illegitimate child is not entitled to share in "legitim".
Furthermore, whilst such children were granted limited
succession rights by the Succession (Scotland) Act 1964
(Ch. 41)
52
it was specifically provided in section 4 that in
order to avoid confusion the "Act shall not be construed
as importing any rule of succession through illegitimate
relationship".
Thus in the absence of any evidence to the contrary,
both the general rule and the general intention of the
Legislature would appear to be that in referrring to
"child/children" it is intehded to refer to legitimate
children only. Therefore, ignoring the constitutional
implications, one must conclude that the illegitimate child
is, accordingly, denied any right of application under
Section 117 when the deceased parent is survived by
lawful issue.
Conclusion
In order to bring our law of succession in relation to
illegitimate children more into line with our fellow
member countries of the Council of Europe and else-
where, it will be necessary to introduce extensive reform.
However, the first concern of the Legislature must be to
clarify our existing, yet limited, provisions. The reforms
introduced by the 1976 Act would appear to have caused
a temporary lull in the "reforming activities" of those
bodies anxious to seek changes in this area of the law.
Undoubtedly, they will soon be reactivated into action if
no evidence is forthcoming in the immediate future of the
Oireachtas introducing further reform in pursuance of its
earlier assurances. When this has been done, most, but
hopefully all, of the present article will have become
obsolete.
The views expressed in this article are solely those of the author. The
article forms part of a series of articles being prepared in
pursuance of a Council of Europe Fellowship for Legal Studies and
Research and the author wishes to record his gratitude to the Council
of Europe for the award. A further article in this series was printed in
the
GAZETTE
January/February 1978.
ROAD TRAFFIC
CODE
•
The Minister for the Environment, Mr.
Sylvester Barrett, T.D., has prepared a
Comprehensive list of the legal
requirements relating to the control of
road traffic. A copy of this document
may be obtained by applying to the
Traffic Control Section, Department of
the Environment, O'Connell Bridge
House, Dublin 2.
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