The Gazette 1978

GAZETTE

JULY-AUGUST

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(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 38 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 39 by granting the illegitmate child the same equal succession rights as was granted to legitimate children in the estate of their 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.

that improve-ments are to be expected in the not too distant future. 31 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)". 32 Whilst it is proposed to examine in this article the succession rights of an illegitimate child on an intestacy 33 , it is worth noting that if that child has been legitimated -under the provision of the 1931 Act 34 or has been adopted under the Adoption Act 1952 as amended, 33 it will be granted the same rights as the legitimate child. 36 Succession Rights on Intestacy Section 9 of the 1931 Act 37 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. (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

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