The Gazette 1989

GAZETTE

DECEMBER 1989

In summary when drafting titles applying for Grants a Solicitor can rely on Section 4A (2) and Section 30 pre- sumptions without enquiring about fathers or relatives claiming non marital links to the deceased; he can pre- sume them all to have pre- deceased until the contrary is proved to him. Where the Solicitor's applicant is a non marital ch i l d / nephew/ cousin he can be described in Oath as the lawful child/ newphew/cousin, the same as any marital child/nephew/ cousin etc. (We shall deal wi th the necessary proofs for such applicants below), (ii) Entitlement in Distribution - Cen Solicitors rely on Sections 4A (2) and 30 Presumptions when distri- buting the estate? In that the Grant follows the interest the converse is also true: the interest follows the Grant. If you are entitled to rely on the presumptions to allow your applicants apply for a Grant you should be entitled to distribute the estate accordingly amongst them. E.g. Solicitor relies on Section 4A (2) that a father of an intestate predeceased, showing a title in the Oath for Administrator as " A bachelor without parent and I am the lawful brother,"

where the mother prede- ceased with no lawful sisters other brothers or issue of predeceased brothers or sisters alive at the de- ceased's death the applicant takes the whole estate. There are strong argu- ments which can be advan- ced from both sides as to whether the presumptions should or should not be relied upon, particularly in the distribution of the estate. In Favour of Reliance on the presumptions it can be argued that: 1. There are 3 obligatory common law proofs which must be established to presume in law the death of a person, firstly that he was unheard of for 7 years, secondly that there are persons who would have been likely to have heard from him and obvi- ously have not and thirdly that all due inquiries have been made. Obviously as none of these 3 proofs was required by the Act the statutory presumpt- ions of death can be availed of much more easily than the common law presumption. 2. Unlike the common law presumption of death which requires a court order, these presumptions do not but arise automati- cally from the Act.

3. These presumptions are rebuttable presumptions of law, which are pre- sumptions which must be made in the absence of evidence to the contrary. It can therefore be argued that the onus clearly rests on the non marital father and non marital next of kin to assert their rights (i.e. to rebut the presumption of death) and not on the marital next of kin to make any extensive inquiries. It can be argued against ralianca on tha presumpt- ions that: 1. As the presumptions are rebuttable by evidence to the contrary it follows that if the non-marital next of kin (e.g. non marital father/ uncle) who survived the deceased could prove that the Grantee, at the time of the extraction of the grant, actually knew of the exist- ence of such non marital next of kin yet excluded them in the distributions of the estate, such Grantee could find himself penal- ised for any losses sus- tained or costs incurred through his actions. 2. If the proposed applicant does not actually know whether the non marital father (hereinafter simply called the father) or non marital next of kin with

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