The Gazette 1989

DECEMBER 1989

GAZETTE

provisions would be to sacrifice the rights of children born outside (but not inside) marriage in the interest of practical administrative conven- ience, but felt it was necessary in the circumstances. The Commission made, in all, 3 recommendations on this issue, the first one being the only one actually enacted by the 1987 Act, in the form of the presumptions set out in Section 4A (2) of the 1965 Act (as inserted by Section 29 of the 1987 Act) and Section 30 of the 1987 Act. The Commission, as stated above, recommended "that legislation should include pro- visions exempting trustees. Executors and Administrators from the obligation to enquire as to whether there are claimants born outside marriage." The aforesaid presumptions do relieve them from enquiring as to whether there are such claimants by pre- suming that all such persons have predeceased. The Legislature did not enact the further 2 recommendations of the Commission, the first being that Trustees, Executors and Admin- istrators should also be relieved f r om liability whe re they administer estates in ignorance of claims of non marital next of kin. The second recommendation was t hat these exemp t i on provisions should not prejudice the right of any non marital next of kin to follow the property, or any property representing it, into the hands of any purchaser for value who may have received it. There was no need for the enact- ment of the second recommenda- tion guaranteeing the right of non marital next of kin to follow proper- ty erroneously transferred, or any property representing same, into the hands of any person other than a purchaser for value. Such a right, besides being a well accepted prin- ciple at Common Law, is already specifically conferred on all unpaid beneficiaries by Section 59 of the Succession Act 1965. The dropping of the other recom- mendation, however, is significant. The Legislature's failure to enact the recommendation relieving per- sonal representatives from liability where they administer estates in ignorance of the claims of non marital next of kin must be re- garded as weakening somewhat the reliance that personal repre-

priority to him (hereinafter called the non marital next of kin) survived the de- ceased, with reasonably simple inquiries he would be able to find out whether they did survive. They may have lived close to the deceased or kept in con- tact with him where in these circumstances they would hear of his death and seek to assert their new rights conferred by the 1987 Act, thereby obliging the Grantee to recall the assets for redistribution. Furthermore Section 46 (3) of the 1987 Act pre- sumes a man, whose name appears as father of a child on a birth certifi- cate, to be the lawful father of that child. Such a man, presumed by the Act to be the father, would probably not even require a Court Order to seek to have the first Grant re- voked and cancelled and the distributed assets surrendered to him.

THE SOLICITORS' BENEVOLENT ASSOC I AT I ON

A CASE IN NEED

Mrs. "X" is in her late 40's, she is the widow of a Solicitor, has five children under 21. Her only income is a widow's pension and family allowance. She has to provide for her family and maintain a home. She faces this enormous responsibility alone. Who can she turn to for help? — The Solicitors' Benevolent Fund. The Solicitors' Benevolent Association assists such cases - and many others where the age of dependants of members of the profession ranges from "under 10" to "over eighty". The Committee of the Association meets monthly and its work covers the entire country, north and south. The Committee funds come from annual subscriptions from members of the Law Society of Northern Ireland and The Incorpor- ated Law Society of Ireland, together with additional subscriptions received from Bar Associations, and individual Solicitors or firms of Solicitors. In recent years the calls on the Association's resources have become more numerous and this year the Committee faces a relatively large deficit. It urgently needs extra funds. Subscriptions can be sent to the Secretary, Ms Clare Leonard, The Solicitors' Benevolent Association, 40 Lr. Fitzwilliam Square, Dublin 2, or c/o The Law Society, Blackhall Place, Dublin 7. The relief from liability was dropped from the Bill with all parties agreeing in the Dail that it was overprotective of personal representatives. The Minister, in proposing the amendment of the Bill, stated that the relief would have discriminated against non marital next of kin in that it would have left personal representatives free to distribute an estate without making any effort to trace persons who would have a claim under the Act. Furthermore, he stated he was doing so on legal advice that the relief from liability was unnecess- ary having regard to the protection afforded to personal representa- tives under Section 49 of the Succession Act 1965, once the personal representatives published the apporpriate notices. Section 49 applies equally to unknown next of kin as it does to creditors of an estate (See Re Aldhous [1955] 2 All E.R. 80). There are two points to note from the Dail's deliberations on this matter. Firstly, despite enacting two presumptions enabling per- 407 sentatives may place on the presumptions.

Having considered the argu- ments both for and against re- liance on the presumptions it is worth noting the recommenda- tions of the Law Reform Com- mission on this point, as set out in pages 142 , 143 and 144 of the Law Re f o rm Commi ss i on Report on Illegitimacy (LRC 4 - 1982) (previously quoted) on which the Act was based. Under the heading "Protection of Trustees Admi n i s t r a t o rs and Executors," the Commission first poses the problem that unless some special protection is given to these people they will be under a substantial obligation of enquiry and conduct, the scope of which could only be ascertained by each question in turn having to come to Court for decision. In favouring the adoption of the English and New Zealand approach of exempting the Trustees Executors and Adminis- trators from an obligation to enquire into whether there are claimants born outside marriage and relieving them from liability for distributing the property in disre- gard to the claims of such persons the Commission fully acknowl- edged that the result of any such