The Gazette 1986

GAZETTE

MARCH 19Sf>

BOOK REVIEW The Succession Act t 965 - A Commentary by W. J. 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

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 67 (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 56 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 of 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 it is in the quality of the printing WhiCh, In my copy, varies within single paragraphs from very bold to being faint to the point almost of disappearance. 0

Charles R. M. Meredith.

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