The Gazette 1986

GAZETTE

BOOK REVIEW

The Succession Act

965 - A Commentary by W.

McGuire. 2nd Edition by Robert A. Pearce. Incorporated

Law Society of Ireland. £25.

The first of January

1967

was a landmark in Irish law.

The coming into operation on that date of the Succession

Act

1965

brought about changes in the law as we knew it

as fundamental as any of the provisions of those cele–

brated thirteenth century enactments about which we

learned at our Masters' knees. Gone were the old rules

of inheritance and male primogeniture. Gone was the

chain of executorship. Introduced were new rules of

intestate succession; new restrictions on the powers of

testators to dispose of their assets by Will; new provis–

ions for the particular protection of widows and children.

To those who had grown up with and become wholl)

accustomed to what was, in effect, an historic status

quo ante

little changed since

IS37,

the Act was cataclys–

mic in the extreme. To William J. McGuire, who

produced the first Commentary on the Act almost

before its ink was dry, we can only offer unstinted

praise. That his Commentary has remained a very useful

guide to the Act throughout the nineteen years of the

Act's life, despite being limited solely to Mr. McGuire's

explanation of the Act as drafted and his speculative

conclusions as to the effect of the many wholly new

provisions, is in itself a testament to his analysis and

foresight.

Nevertheless, with many years' experience of the

application of the Act in practice and with the

accumulation of case law during that period, it has long

been obvious that a more comprehensive textbook on the

subject was required. The publication by the Law

Society of the second edition of William McGuire's

Commentary, by Robert A. Pearce, is extremely welcome.

The author has paid Mr. McGuire the compliment of

following the format of the original Commentary. The

present edition naturally contains far greater comment

on each section and sub-section of the Act and also

includes, by way of a preface, a very interesting and

enlarged exposition on the history of succession which

will, of itself, be of great assistance to law students.

A quick count through the Index of Cases reveals

approximately fifty post-Succession Act cases referred

to in the text. In the length of time the Act has been in

operation, I would have expected a higher number than

this but, without discussing the matter with the author,

one can only speculate whether this is an aspect of the

paucity of law reporting or a tribute to the drafting of

the Act.

The author draws attention to certain sections of the

Act which have given rise to difficulties of interpretation

or operation. He discusses at length section 117 (pro–

vision for children), which section he states has given

rise to more litigation than any other single provision in

the Act. He regards it as a major disadvantage that the

provisions of the section are limited to the children of a

"testator" and that the discretion of the Court is not

extended to cases of intestacy. The author also observes

as to the uncertainty concerning how far the Courts are

prepared to interpret the section as empowering them to

rearrange a testator's dispositions, apart from making

MARCH

19Sf>

provision for the applicant child.

With regard to notice, Mr. Pearce points out that the

Act imposes no duty on personal representatives to

notify children of their rights under Section 117. I was

')urprised to find that, apart from remarking that there

must be occasions on which a personal representative

would be entitled to notify the children, or even instigate

proceedings on their behalf, (for instance where the

personal representative was a parent or guardian of the

children), he does not offer any comments on the par–

ticular potential disadvantages likely to be suffered

through lack of any statutory obligation to consider the

position of children of a testator, either minors or adults

who either might not have a guardian or might be unde;

some disability.

Consideration is also given to the interpretation of

Section

(shares of surviving spouse and issue on

intestacy). The author draws attention to the difficulties

which may arise from the failure of the Act to define

"issues" and, in particular, the expression "all the

issues" referred to in Section

67(4).

Section

of the Act (right of surviving spouse to

appropriate dwelling and household chattels) is entirely

new law and also gives rise to problems. One problem

relates to uncertainty as to the definition of "dwelling".

Another interesting weakness of the section arises from

the use of the word "infant" in sub-sections (3) and (9).

Mr. Pearce points out that although it was no doubt

envisaged that the "infant" referred to would be a

child of the deceased, the wording of the section

contains on its fact no such limitation, nor is any such

limitation imported by section 3 of the Act, the defin–

ition section, which provides simply that " 'infant"

means a person under the age of twenty-one years".

As a final bonus, this second edition includes ten

Appendices comparing shares taken on intestacy before

and after the commencement of the Act; comparing the

ordinary rights of a spouse on intestacy with a spouse's

legal right share under the Act; setting out the High

Court Probate Rules under Orders 79 and

SO,

including

the Probate Forms prescribed by those Orders; and

setting out a considerable range of other precedent

Forms and documents used in Probate practice.

Perhaps our legislators may be guided by Mr. Pearce's

commentary on the Act or, at least, provoked into a con–

sideration of some of the Act's proven weaknesses. After

almost

t~enty ~ears

op~ration,

such a pioneering and

far-reaching piece of legislation surely deserves some

official review.

Just as Mr. McGuire's first edition of the Commentary

rapidly became a standard part of every lawyer's library,

so too must Robert Pearce's second edition. The material

contained in the Appendices alone could well be said to

justify the production of this edition. For the practitioner

and for the student this work will prove invaluable. The

author, the Society and all concerned are to be congrat–

ulated.

If.

a~y smal~ fau~t

can be found

is in the quality

of the printing WhiCh,

my copy, varies within single

paragraphs from very bold to being faint to the point

almost of disappearance.

Charles R. M. Meredith.