The Gazette 1978

JULY-AUGUST

19

GAZETTE

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 42 are of the opinion that this inter- pretation section together with the general rule of con- struction of such words as "children" 43 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 44 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 43 "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 46 only accords the illegitimate child limited succession rights to the estate of the mother. Consequently an application by an illegitimate child under Section 117 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. obligations which could be enforced under the Act

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. 40 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 41 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: (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. v. 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

(44) Sect. 3. (45) Sect. 25. (46) Sect. 9.

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