The Gazette 1989

GAZETTE

DECEMBER 1989

29 of the 1987 Act, which sets up the specific presumption that the the father of a non marital child and all persons claiming through him predeceased the child, unless the contrary is shown, (2) Section 30 of the 1987 Act sets out the general presumption when a person is applying for a Grant, that the deceased was not survived by any person whose parents have not married each other or by any person claiming through such person, unless the contrary is shown. The purpose of these presumptions is to reduce the effect on existing Probate Law and practice of the equalisation of rights of marital and non marital children. To understand the effect of the 1987 Act on Intestate Law it is necessary to know how far Solicitors can rely on these 2 presumptions when seeking to establish (1) Entitlement to Grants and (ii) Entitlements in Distribution. The Solicitor may rely on the presumption set out in Section 4A (2) of the 1965 Act that the father of an intestate non marital child predeceased the child unless his applicant actually knew that the father had survived him. The onus is otherwise on the father, or those claiming through him, to bring to the attention of the applicant that the father survived the child. The position is the same with the wider Section 30, 1987 Act, presumption and the Solicitor may presume all next of kin, claiming a non marital link to the deceased, to have predeceased the deceased until the contrary is proved to him. The practical effect of these presumptions on the drafting of titles is illustrated in the following examples: (a) A bachelor without father (or a bachelor without parent - where the mother predeceased). A Solicitor may draft this title to allow a brother apply for a Grant not- withstanding his lack of knowledge of whether the (i) Title to Grant

1. Wills (S. 27 - Wills made on or after the 14/6/1988) (i) Title to Grant One's entitlement to prove a Will is affected by the Act only in the situation where the executor is not applying and the residue is left e.g. " t o my children" or " t o my issue" which if the Will was made after the 14/6/1988 will now include (unless the contrary intention appears therein) non marital children. Non marital children equally with marital children of the testator will be residuary legatees and devisees under the Will and entitled to the Grant, with the Executor not applying, (ii) Entitlement in Distribu- tion As stated above, unless the Will specifically gives a gift to his marital (legitimate) 'issue'/'children' all refer- ences to children or issue will now include (for Wills made on or after 14/6/1988) non marital children and they .will take equally in distribution, (iii) Applications under Sect- ion 117 of the Succession Act 1965 Section 31 of the 1987 Act gives non marital children of Testators dying af ter 14/6/1988 a right to make an application under S. 117 of the Succession Act. By allowing the date of the testator's death as the operative date many more non marital children may benefit under S. 117 than can benefit under S. 27 of the 1987 Act, which only applies to Wills made after 14/6/1988. In deducing any relationship with regard to an intestate dying on or after the 14/6/1988 no regard shall be had to the marital status of a person's parents. Having equalised the rights under law of all children whether born within or outside marriage the Act goes on to set out the two presumptions mentioned above: (1) Section 4A (2) of the 1965 Act, as inserted by Section 2. INTESTACIES (S. 29 - all deaths Intestate on or after 14/6/1988).

SOLICITORS /EXECUTORS House Clearances* Preraration of house for sale* C.A.T. assessments and settlements* All other estate problems solved efficiently & professionally* Contact: Seán Quinn.880966. References available. father survived. He can rely on the Section 4A (2) pre- sumption that the father predeceased. (b) A bachelor without parent brother or sister. Relying on the Section 30 presumption that a deceased person is presumed not to have been survived by any relative whose parents have not married each other or who is related to him through such a person, it is not necessary in drafting titles to clear off the possibility that a bachelor or spinster might have had any issue. There is therefore no need to change existing drafting of these titles which will still read "a bachelor (spinster) without parent - and I am the lawful brother." (c) A Widower - and I am the LAWFUL son A Bachelor - and I am the LAWFUL son It was mooted in Probate circles that the word "lawful' would have to be dropped in titles to ensure no distinction would be made between 'marital child titles' and 'non marital child titles' the former reading " a Widower and I am the lawful son" the latter reading "a Bachelor and I am the son." The approach adopted by the Probate Officer is to adopt the word 'lawful' for all non marital children applying, who have established their rights to a Grant. This is in keeping with the spirit of the Act which preserves existing practice as much as possible. The correct title for a non marital child to his father is therefore "A Bachalor - and I am tha lawful son."

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