The Gazette 1989

GAZETTE

DECEMBER 1 9 8 9

The Solicitors Benevolent Association

(2) If with reasonable inquiries it could be easily ascertained whether the father or non marital next of kin survived the deceased, for practical reasons, to avoid a lot of unnecessary trouble later when they would assert their rights, it would not be advisable to rely on the pre- sump t i ons w i t h o ut f i r s t ly making those inquiries and pub- lishing the appropriate S.49 notices. (3) If reasonable inquiries would not reveal a claimant under the Act because, for example, the identity of the father is un- known and no name of a father appears on the birth cert then the presumptions can be relied upon to the full, as regards both entitlement to Grants and in the distribution of the estates. The onus clearly rests on the non marital father and non marital next of kin in such cases to assert their rights. If the marital next of kin extract a Grant and wait 6 years any possible claims against them will be statute barred.

sonal representatives to presume all possible claimants under the Act to have predeceased, the obvious intention in dropping the relief from liability for personal representatives in these cases was to ensure that they were still under a reasonable duty of inquiry to trace such persons. Secondly, personal repre- sentatives, as was stated, may still cover themselves from personal liability by publishing Section 49 notices seeking non marital next of kin to assert their rights. Besides being very costly, Section 49 notices in these cir- cumstances may well give rise to bogus claims being made against an estate. The solicitor would obviously require such claimants to seek declarations of parentage in the courts. In the absence of such applications, at what stage can the solicitor ignore such claims and rely on the presumptions? In such in- stances where the solicitor feels the claim clearly will not succeed, he may apply to the Probate Judge for directions without issuing the usual special summons in the High Court for an order of the Chancery Court to enable him to proceed with his administration of the estate. In the vast majority of cases, however, personal representatives will know, or with reasonable inquiries will be able to find out, if there was any child born outside marriage who would be a potential claimant under the Act. If they are quite positive no such claim could exist there would, in my opinion, be no need to publish Section 49 notices. It is accepted practice in Probate matters generally that where a personal representative has acted at all times bona fide in accordance with statute he will not be held personally liable and any costs and losses thereby incurred in his administration will be taken from the estate. It is suggested thet in cir- cums t ences whe re a c l a im could arise under the Act, a prudent Solicitor would adopt the following guidelines: (1) If his applicant knew the father or non marital next of kin sur- vived the deceased he cannot rely on the presumptions. Once he knows they survived, neither can he publish S.49 notices and rely on the fact that the notices have not been replied to (See Re Beatty (1892) 29 LR Ir 290).

As most Practitioners know, the Solicitors Benevolent Association includes Solicitors who are mem- bers of both The Law Society of Northern Ireland and the Incorpor- ated Law Society of Ireland. In September last the Directors held their meeting at Law Society House, Belfast. The attendance included the Chairman, John M. O'Connor, and the Secretary, Clare Leonard (Dublin), and Directors from Northern Ireland, Thomas A. Burgess and J. Brian Garrett. Assistance to beneficiaries is pro- vided on a confidential basis and so meetings of the Directors are private affairs. However, after the Sept- ember meeting the Secretary, Clare Leonard, mentioned two specific news items to highlight the wide ranging support which is now being provided for the S.B.A. by those connected with the profession - in addition to annual subscriptions. Colin Haddick, President of the Law Society of Northern Ireland, when attending the A.B.A. Conference in Honolulu and the Australian Legal Convention in Sydney last August participated in both a 10 km run and a 14 km run, and the proceeds of his sponsored runs are in both cases to be donated to the Association. The second news item concerns a Christmas Concert planned for Friday the 1st of December next at Blackhall Place, Dublin, when Mrs. Nanette Ivers (wife of the Director- General of the Incorporated Law Society) will be the principal Soloist. The Garda Band, whom many have seen at Lansdowne Road Rugby Internationals, have also agreed to participate in the planned Concert and the proceeds are to be donated to the Association. As Clare Leonard commented at the luncheon following the meeting at Law Society House - "The Association warmly welcomes the support it receives and wishes to thank the many who in a variety of ways encourage and assist the Directors in their work". •

Part 2 of this article will appear in the December, 1989 Gazette.

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