The Gazette 1978

JULY-AUGUST

1

GAZETTE

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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