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Western Australia Law Reform Commission |
THE LAW REFORM COMMISSION OF WESTERN
AUSTRALIA
Project No
3
Illegitimate
Succession
WORKING
PAPER
DECEMBER 1963
SCHEME OF THE PAPER
Paragraph
TERMS
OF REFERENCE 1-2
THE MOVEMENT FOR REFORM 3
THE LAW
IN WESTERN AUSTRALIA 4-12
THE LAW IN OTHER
PLACES 13-21
PROPOSALS FOR REFORM THAT HAVE BEEN MADE IN OTHER
PLACES 22- 26
THE CASE FOR REFORM 27- 30
POSSIBLE
REFORMS 31
DISCUSSION OF THE POSSIBLE REFORMS 32-
43
POSSIBLE INCIDENTAL PROVISIONS 44
INTRODUCTION
The Law Reform Committee having completed its first consideration of
the projects on the Testator's Family Maintenance Act (Project No.2) and
Illegitimate Succession (Project No. 3), now issues its working papers on these
matters.
The papers are being issued together because the two matters
are somewhat related and the papers contain cross-references.
The
papers do not represent; the final views of the
Committee.
Comments and criticisms should reach the Committee by
the 31 March 1968.
Copies of the papers are being forwarded to
–
The Chief Justice and the Judges of the Supreme Court, The
Master of the Supreme Court,
The Law School, The Law Society, The Public
Trustee,
The Perpetual Executors Trustee and Agency Co. (WA) Ltd., The West
Australian Trustee Executor and Agency Co. Ltd., and
Other Law Reform
Commissions and Committees with which this Committee is in
correspondence.
The Committee may add to the above
list.
The research material on which the papers are based is at the
offices of the Committee and may be made available on request.
TERMS OF REFERENCE
1. "To consider whether any
alterations are desirable in the law of succession in Western
Australia
in illegitimate persons".
2. The terms of reference would warrant our
examining the position of illegitimates relative to the Testators Family
Maintenance Act, 1939-1962. However, as this matter is dealt with in the
working paper on Project No.2 – Testator’s Family
Maintenance, we will not consider the matter here.
THE
MOVEMENT FOR REFORM
3. The present move for reform in this
State began with a minute, dated the 12th July,
1966, and written by the
Legal Officer of the Public Trust Office, to the Public Trustee. In this minute,
it was pointed out how the law in this State was leading to hardship, and how
this State had failed to follow reforms carried out in the United Kingdom and in
other States of Australia. He proposed the enactment of a provision equivalent
to that in s.9 of the Legitimacy Act, 1926, of the United Kingdom, which
permits an illegitimate child to succeed to the estate of his mother, if there
are no legitimate children, and permits a mother to succeed to the estate of her
illegitimate child.
THE LAW IN WESTERN
AUSTRALIA
4. Neither the illegitimate nor any issue of an
illegitimate has any right to participate on the intestacy of either parent of
the illegitimate; nor have either parent of the illegitimate any right to
participate on the intestacy of the illegitimate. Nor can the illegitimate
participate on the intestacy of lineal or collateral kindred, or vice
versa.
5. So far as concerns the construction of terms such as
"children" and "issue" in wills instruments, the present rule of construction is
that terms apply only to those with a legitimate connection. In construing such
documents the courts will regard these terms as extending to persons with an
illegitimate connection only if the particular language or surrounding
circumstances justify the conclusion that such was the intention of the testator
or settlor.
Illegitimate Succession – Working Paper / 3
6. These are
rules of the common law. In Western Australia they have been considerably
modified by statute, though not to the same extent as in England and in most
other parts of Australia. The statutory provisions directly in point in this
State are the Adoption of Children Act, 1896-1964, the Legitimation
Act, 1909-1940, s.89 of the Commonwealth Marriage
Act,
1961, and s.21 of the Law Reform (Property,
Perpetuities and Succession) Act, 1962.
7. The Legitimation
Act provides that any child who is thereby legitimated "shall be deemed ...
legitimated from birth ... and shall be entitled to all the rights of a child
born in wedlock" (s.3). Furthermore, it provides that the issue of any such
legitimated child shall take, by operation of law, the same real and personal
property which would have accrued to such issue if the parent had been born in
wedlock (s.4).
8. Section 89 of the Marriage Act covers the
same ground as our Legitimation Act. However, the latter is not
rendered altogether inapplicable by this, for sub-s.(4) of the
Commonwealth provision is as follows –
"Nothing in this
section renders ineffective any legitimation that took place before the
commencement of this Act by or under a law of a State or Territory or shall be
taken to exclude the continued operation of such law in relation to such a
legitimation."
9. Both statutes specify that legitimation does not
qualify the legitimated person to share in any distribution or property coming
about as the result of a disposition made or death occurring before the date of
the legitimation, except, in so far as the State Act is concerned, to the extent
that such property remains undistributed at the date of the legitimation (ss.3
and 5 of the Legitimation Act and s.89(5) of the Marriage
Act).
10. By the Adoption of Children Act it is provided
that where an order for adoption has been made, the adopted child shall for all
purposes, and with regard to the rights of the adopting parents as well as those
of the child, be deemed in law to be the child born in wedlock of the adopting
parents (ss.7 and 8). However, this rule is subject to the following proviso
-
4 / Illegitimate Succession – Working Paper
“Provided
always, that such adopted child or the issue of that child shall not by such
adoption –
(1) acquire any right, title, or interest
whatsoever in any property which would devolve on any child or remoter issue of
the adopting parent by virtue of any deed, will, or instrument whatsoever
prior to the date of such order of adoption, unless it is expressly so
stated in such deed, will or instrument; nor
(2) be entitled to take
property expressly limited to the heirs of the body of the adopting parent,
nor property from the lineal or collateral kindred of such parent by
right of representation; nor
(3) acquire any property vested or
to become vested in any child of lawful wedlock of the adopting
parent in the case of the intestacy of such last mentioned child, or
otherwise than directly through such adopting
parent.”
11. Whilst it is stated that this new
relationship terminates all the other rights, legal responsibilities and
incidents existing between the child and his natural parents, the right of the
child to take property as "heir or next of kin" or his natural parents, directly
or by right of representation, is specifically preserved (s.8). Of course,
where the adopted child is illegitimate, he would never have had any such
right to succeed to the property of his natural parents.
12. Section
21 of the Law Reform (Property, Perpetuities and Succession) Act
modifies the rule, as set down in the Wills Act, 1837, whereby a
devise or bequest by will to a child or other issue of the testator does not
lapse if the child or issue dies before the testator, but, unless a contrary
intention appears in the will, takes effect as if the death of such person had
happened immediately after the death of the testator (s.33 of the Wills Act,
1837 - adopted in this State by 2 Vict. No. 1). Its effect may be summarised
by saying that where any property is devised, bequeathed or appointed to a child
or issue of the testator (whether as a named or designated person or as a member
of a class) and such child or issue dies in the lifetime of the testator, the
devise, bequest or appointment takes effect as if the will had
contained a substitutiona l gift devising or bequeathing or appointing the
property to such of the children of that person as are living at the time of the
testator’s death and if more than one, in equal
Illegitimate Succession – Working Paper / 5 shares. It does not matter
that the child or issue to whom the devise, bequest or appointment is made is
illegitimate - subject to the proviso that an illegitimate relationship between
a father and his child shall not be recognised unless there is proof that the
paternity of the father was admitted by or established against the father while
both the father and child were living - nor, where the person to whom the
devise, bequest or appointment is made is a woman, does it matter that the
children she leaves surviving her are illegitimate. This provision follows the
Wills Amendment Act , 1958, of New Zealand.
THE LAW IN
OTHER PLACES
13. The Legitimacy Act, 1926, of the United
Kingdom provides that, in respect of deaths intestate after 31st December, 1926,
an illegitimate may succeed on his mother's intestacy as if he had been born
legitimate, is no legitimate issue of the mother survive her, and, in the same
circumstances, the legitimate issue of the illegitimate stand in his place if he
dies before his mother. A reciprocal right is given to the mother to succeed on
her illegitimate intestacy if no legitimate; issue of the illegitimate survive
and succeed him and, if the illegitimate be a woman, no illegitimate children
survive. These rights are subject, respectively, to the prior rights on
intestacy of any widower of the mother and of any widow or widower of the
illegitimate.
14. In New South Wales (1954) and Victoria (1958)
legislation has been passed which is substantially along the lines of the
aforesaid provisions of the Legitimation Act of the United
Kingdom.
15. South Australia has gone a good deal further
than any of the abovementioned enactments with s.55 of its Administration
and Probate Act, 1919-1936, which is as follows:-
55 (1) So far
as regards succession to any estate under any will or under the total or partia
l intestacy of a woman her illegitimate child shall have the same right and
title as if he were legitimate.
(2) So far as regards succession to
any estate under any will or under the total or partial intestacy of an
illegitimate child his next of kin on his mother's side shall have the same
right and title as if such child were
6 / Illegitimate Succession – Working Paper
legitimate.
(For the application of this section, see 10 A.L.J., 155; In
re
Gardiner Deceased, [1936] S.A.S.R. 84; In the Estate of
E.F. deceased,
[1948] S.A.S.R. 97; In the Estat e of Searle,
deceased, [1936] S.A.S.R.
303.)
16. Also going beyond the
provisions of the legislation of the United Kingdom, New South Wales and
Victoria, is s.49E of the Administration and Probate Ordinance,
1929-1967, of the Australian Capital Territory, which is as follows
–
49E (1)Where an intestate is survived by an illegitimate
child, the child is entitled to take the interest in the intestate estate that
the child would be entitled to take if the child were the legitimate child of
the intestate.
(2) Where an illegitimate child of an intestate has
died before the intestate leaving issue (being issue who are the legitimate
issue of the child) who survive the intestate, the issue are entitled to take
the interest in the intestate estate that they would have been entitled to take
if the child had been the legitimate child of the
intestate.
(3) Where an intestate (being an illegitimate person) is
survived by a parent or both parents, the parent is or parents are, as the case
may be, entitled to take the interest in the intestate estate that the parent or
parents would have been entitled to take if the intestate had been the
legitimate child of the parent or parents.
(4) For the purposes of
this Division and the Sixth Schedule in their application to and in relation
to an intestate, relationship may, to such extent only as is necessary
to enable effect to be given to the preceding subsections of this section, be
traced through or to an illegitimate person as if the person were the legitimate
child of his mother and, subject to the next succeeding subsection, of his
father.
(5) For the purposes of this section, a person shall not be taken to be the father of an illegitimate child unless he has acknowledged, in writing, that he is the
Illegitimate Succession – Working Paper / 7 father of the child or has
been adjudged by a court to be the father of the child, and, in the case
where the child died before that person, the person so acknowledged the
child, or has been so adjudged, before the death of a child.
(6) For
the purposes of the last preceding sub-section, a person shall be taken to have
been adjudged by a court to be the father of a child -
(a) if the
Court has made an order in such circumstances that it was not entitled to make
the order unless it found as a fact that the person was the father of the
child; or
(b) if, at any time within six months before he birth of a
child, the court has made an order in such circumstances that it was not
entitled to make the order unless it found as a fact that the child's mother at
that time with child by that person.
17. Queensland does not give the
illegitimate any right of succession, but it does, on s.89 of the Succession
Acts, 1867 to 1968, give its Supreme Court power to make provision for an
illegitimate child out of the estate of the intestate natural parent, whether
the intestate be the child's father or mother. This is an extension of the
Testator's Family Maintenance principle.
18. The law of New
Zealand is that, for the purposes of intestate succession, the
relationship of mother to illegitimate child and of the child to the mother is
to be deemed, in all cases - except where the child has been legally adopted - a
legitimate relatio nship (s.58 of the Administration Act,
1952).
19. Attention is also directed to the information as to
the law in other countries which is given in Appendix IV of the Russell Report
(see para. 22 below) and in the report of the Ontario Law Reform Commission
(volume III, pages 471-473) (see para. 25 below).
20. It will be
noticed that legislation of South Australia, the Australian Capital Territory
and New Zealand, all confer rights on the illegitimate irrespective of whether
or not the intestate is survived by legitimate children or their
representatives.
8 / Illegitimate Succession – Working Paper
21. Furthermore,
it should be pointed out that recent Australian legislation - that of the
Australian Capital Territory - gives the illegitimate a right of succession not
only to the estate of the mother, but to that of the father as well, provided
that the father has acknowledged the relationship in writing or has been
adjudged by a court to be the father of the child.
PROPOSALS
FOR REFORM THAT HAVE BEEN MADE IN OTHER PLACES
22. In the
first place, notice should be taken of the United Kingdom's Report
of the
Committee on the Law of Succession in Relation to
Illegitimate Persons (Cmnd 3051)
(referred to throughout this paper as
the Russell Report). This was published in July, 1966, and the Lord Chancellor
subsequently gave an assurance that, at least as far as English law was
concerned, the Government would promote legislation
implementing its recommendations (Parliamentary Debates, 1966-67, Vol.
280, Col. 764). This has not yet been done, but a Law Reform (Miscellaneous
Provisions) Scotland Bill has been introduced into the Parliament of the United
Kingdom and this will have the effect (inter alia) of
–
(1) giving illegitimates the same rights of succession on
intestacy as legitimates;
(2) giving parents a right to succeed to
the property of their illegitimate children who are intestate and without
issue;
(3) creating a presumption that an illegitimate is not
survived by his father, unless the contrary is shown (see clause
4).
23. The Society of Public Teachers of Law in Kingdom has
been asked by the Law Commission to review of the law relating to
illegitimate' children and make recommendations with regard to it. It is
anticipated that the Society will submit its report to the Law
Commission before the end of this year. The indications are that the prevailing
thought in the United Kingdom is that the recommendations of the Russell Report
did not go far enough and it seems likely that no action will be taken to
implement those recommendations until the Society's report has been
considered.
24. The recommendations of the Russell Committee in so
far as they are relevant to the present inquiry, were as follows:-
Illegitimate Succession – Working Paper / 9
(1) The
extension of the rights of an illegitimate (and his legitimate issue in his
place if he predeceases) to share on his mother's intestacy to cases where the
mother leaves legitimate issue, and on the basis of equality (paras. 31, 32
and
33).
(2) The rights of an illegitimate (and his
legitimate issue in his place if he predeceases) to share on his father's
intestacy to be the same as in the case of a mother as so extended (para. 46)
(this recommendation subject to the dissent of one member of the
Committee).
(3) The rights of a father on the intestacy of his
illegitimate to be equal to those of the mother i.e. that given by the
Legitimation Act of 1926, namely a right to succeed on the
illegitimate’s intestacy if –
(i) no legitimate issue
of the illegitimate survive and succeed him, and
(ii) if the
illegitimate be a woman, no illegitimate children survive her.
Any
such right would be subject, of course, to prior rights of any widow or widower
of the illegitimate (para. 46).
The Committee considered that,
because the father will often be unknown, there should be a "rule of
convenience" that, for purposes of distribution, on an illegitimate's
intestacy, the father of the illegitimate be deemed to have predeceased
the illegitimate unless the contrary is established (para.
47).
(4) The rule of construction of phrases such as "children",
"issue", etc. in wills and other instruments as prima facie limited
to legitimate relationship to be retained (paras. 57 and 58).
(5) The courts to be left to decide in any disputed claim on all the evidence whether the particular paternity has on balance of probabilities been
10 / Illegitimate Succession – Working Paper
established. No
birth certificate, form of declaration, or affiliation order (or its refusal),
to be conclusive proof (para. 44).
(6) Special protection be provided
for those (administrators, etc.) who distribute estates in ignorance of the
existence of an illegitimate claimant. For these purposes of distribution
evidence of the absence of illegitimates not to be required (para.
60).
(7) No provis ion to be made for suits for declarations of
illegitimate paternity or maternity (para. 40).
(8) Legislation
embodying any of these recommendations not to affect estates of people dying
before that legislation comes into operation (para. 59).
25. Other
recent proposals for reform in this branch of the law are those published by the
Ontario Law Reform Commission in 1967 as part of its project on family law. The
said proposals are as follows (see volume III of the report at pp.
537-538).
(1) In so fa r as paternity has been proved or acknowledged
before death (there is seldom any problem about the maternity of a child)
illegitimacy should be no bar to succession.
(2) "Child" and similar terms should include an illegitimate child, so that he can take under a will to "children" and inherit on an intestacy from both his mother
(and his maternal relatives) and his father (and his paternal relatives).
Similarly an illegitimate's parents and other natural relatives should be in no
different position on the death illegitimate child, than if the child
had not been illegitimate. The principle of equating the illegitimate
with the legitimate should apply for the benefit of the natural
relatives.
(3) Natural relatives of an illegitimate to be entitled to
succeed on the intestacy of an illegitimate as though the deceased had been
their lawful relative.
Illegitimate Succession – Working Paper / 11
(4) Since the
effect of adoption is now to make an adopted child the legitimate child of the
adopting parent, an erstwhile illegitimate child ceases to be
illegitimate upon adoption and is no longer in law the child of its natural
parent. Thus, an adopted child ought not to succeed on an intestacy of, or under
a will to "children" of, his natural parents. To allow an adopted
child to succeed as the child of his adopting parent and as the child of
his natural parent would give him an undue advantage and would unjustly reduce
the share of other children of his natural parents.
It must be
pointed out that these proposals are those of the special committee which the
Ontario Law Reform Commission set up to study the matter; they have not yet been
adopted - or rejected - by the full Commission.
26. A most
interesting proposal is that set out in the recent New Zealand Bill for a
Status of Children Act, 1968. This Bill seeks to give to illegitimates -
"for all the purposes of the law" - the same status as legitimates. This
basic principle, however, looks like being considerably qualified in its
application by restrictions as to the mode of proof of paternity; Clause 7 of
the Bill is as follows –
“Recognition of Paternity
- (1) The relationship of father and child, and any other
relationship traced in any degree through that relationship shall, for
any purpose related to succession to property or to the construction of
any will or other testamentary disposition or of any instrument creating a
trust, or for the purpose of any claim under the Family Protection Act be
recognised only if –
(a) The father and the mother of the child
were married to each other at the time of its conception or at some subsequent
time; or
(b) Paternity has. been admitted by or established against
the father in his lifetime (whether by one or more of the types of evidence
specified by section 8 of this Act or otherwise) and, if that purpose is
for the benefit of the father, paternity has been so admitted or established
while the child was living.
12 / Illegitimate Succession – Working
Paper
(2) …”.
The Bill also seeks to
abolish the rule of construction whereby in any instrument words of relationship
signify only legitimate relationship (clause 3(2)).
THE CASE
FOR REFORM
27. In several respects the law of this State already
recognises that the legal rights which arise out of the blood relationship
should not be denied to the illegitimate. Apart from s.21 of the Law Reform
(Property Perpetuities and Succession) Act, 1962 (para. 12 above), we refer
particularly to those provisions of the Statute la w which confer on the
illegitimate child, to take action for and share in the damages payable where a
parent is killed because of the wrongful act, neglect or default of some other
person (Fatal Accidents Act, 1959, s.3(2), but see also s.6(3)), and to
those provisions which confer a similar equality on the illegitimate child when
it comes to claiming and sharing in the workers compensation which is payable in
the event of a parent suffering death as the result of an accident arising out
of or in the course of his employment (Workers Compensation Act,.
19l2-1967, s.5 - definition of "Dependants" and "Member of a
family").
Illegitimates also have rights under the Estate Duty
Assessment Act, 1914-1957 (s.18A) and under the Repatriation Act,
1920-1965.
28. The common argument against according
illegitimates equality with children born in marriage is that it will diminish
the material value of the rights conferred by marriage and thus tend to
undermine marriage as a social institution. In other words that while the State
recognises and upholds marriage and the family as the basic social unit it
should not do anything that might hasten the breakdown of these
institutions.
It would be unreal to suggest that persons are
persuaded to marry by the thought that, if they do not, it will be necessary for
them to make wills in order to ensure that their property is inherited by their
children.
29. The argument mentioned in the first part of paragraph
28 above fails to recognise the plight of the individual illegitimate and
experience indicates that there have been many cases
Illegitimate Succession – Working Paper / 13 of apparent injustice. The
information from the Public Trustee, the private trustee companies, the legal
profession and other sources, indicates, for instance, that there have been
cases in recent years of brothers and sisters, and children of deceased brothers
and sister's, taking the whole or a large part of the estate on intestacy, to
the exclusion of the intestate's illegitimate infant children.
30. It
is reasonable to assume that the cases that have come to our notice represent
only a proportion of the cases of this sort. Furthermore, in view of the rising
number of illegitimate births, there seems good reason to suppose that, in the
future, the number of such cases will increase. In this last connection, the
following figures should be noted:-
Total births compared with
illegitimate births for the period, 1961 - 1966
Total
Births Illegitimate
Births
1961 17,078 959
1962 17,064 1,005
1963 17,290 1,229
1964 16,685 1,311
1965 16,186 1,439
1966 17,007 1,607
(Western
Australian Year Book, 1968)
POSSIBLE
REFORMS
31. A consideration of the existing law, the various
involved and of the reforms which have been made elsewhere suggest the following
possibilities –
(1) the relations hip of the illegitimate child
to its parents to be deemed legitimate for all purposes relating to intestate
succession, so as not only to give the illegitimate the right to succeed to the
property of either parent, and vice versa, but also to establish the usual and
corresponding rights of succession between the child and all other lineal and
collateral kindred;
14 / Illegitimate Succession – Working Paper
(2) where the
right to succession depends on the person being the child of a particular
parent, that right not to be lost on account of the parent being
illegitimate;
(3) the terms "children", "issue" etc., where used in a will, to be deemed to include illegitimates, unless the words of the will indicate a contrary intention
(consistency would require the application of a similar rule in respect of
other instruments effecting disposition of property);
(4) the
legally adopted illegitimate child to have no right to succeed on the
intestacy of either natural parent, or of any lineal or collateral kindred in
the event of the parent or kindred dying after the making of the adoption order;
nor to have any right under a testamentary gift to the "children", "issue ",
etc. of either natural parent (whether made by a parent or otherwise)
where the particular will is executed after the making or the adoption order,
unless there are indications in the will, or in the surrounding circumstances,
that he is meant to take (consistency would require a similar rule in the case
of other adopted children - see para. 11 above).
DISCUSSION OF
THE POSSIBLE REFORMS
32. In considering these possibilities it
should be borne in mind that amendments to the Testator's Family
Maintenance Act are also under consideration (see Working Paper on
Project No. 2) and that relief may become available to illegitimates out of both
testate and intestate estates under that Act. Those who stress the importance of
marriage and the family unit may find legislation which merely permits
illegitimates to apply for relief out of their parents' estates more acceptable
than legislation which grants them status.
Such a suggestion was put
to the Russell Committee, though apparently coupled with the idea that the
illegitimate could also have full rights of succession on intestacy if he had
had some true "familial relationship" with the deceased. The Russell Committee
did not accept these views (see paras. 31, 38 and 45 of the Russell
Report). In particular, they stressed the difficulty of formulating any
satisfactory test of "familial relationship" (but see para:3.10 and
11 of
Sir Hugh Munro-Lucas-Tooth's note of dissent).
Illegitimate Succession – Working Paper /
15
33. Basically, the rules set out in para. 31 above do not
go beyond those recommended for adoption by the working committee of the Ontario
Law Reform Commission, or the law as it already exists in various parts of the
world (see Appendix IV to the Russell Report and volume 11, pages 471-473, of
the report of the Ontario Law Reform Commission). However, they do go beyond any
present Australian law and also beyond the recommendations of the Russell
Committee.
34. The only argument for denying the illegitimate a right
to succeed on the intestacy of lineal (i.e. other than parents) and collateral
kindred would seem to be that which found favour with the Russell Committee and
which appears in paragraph 32 of its report.
"We appreciate
that there may well be cases in which it would be reasonable to
suppose that an illegitimate would be intended by the deceased to share in the
intestate estate of a grandparent, or of a brother or sister of a settled
irregular establishment. But on the whole it seems to us that it would not be
right to impose a system of intestate succession which could, for example, lead
to participation of a daughter's illegitimate in the intestacy of the daughter's
parent when such participation might be directly opposed to the wishes of
the latter, who indeed, might know nothing of the
illegitimate."
35. This argument is based on the assumption that
generally intestates are likely to have had an antipathy to their illegitimate
kindred. There is no evidence to warrant this assumption. In any event,
legislative rules for distribution should not automatically exclude persons
from benefit on any vague assumption as to the possible wishes of a deceased
(see the criticism of this decision of the Russell Committee in 30 Modern Law
Review pp. 554-555)
36. To give the illegitimate a right of to
the estate of the father and his relatives raises squarely the problem of
establishing paternity. The Russell Report points out the particular difficulty
of this task –
"There is of course the distinction dictated
by nature between the association between an illegitimate and his mother and
that between an illegitimate and his father; and this distinction has both an
evidential and a familial aspect. Nature permits that a man may produce more
illegitimates more secretly. Facts dictate that it must be generally far more
difficult to establish the paternity of an illegitimate than the maternity:
blood tests can sometimes deny an alleged paternity but at present cannot to any
significant extent establish it: the facts of birth normally establish
maternity." (paragraph 22).
16 / Illegitimate Succession – Working Paper
"These
differences lead to the result that there is far more likely to be at least at
some stage a familial relationship between mother and illegitimate than between
father and illegitimate. While either parent may sever the
familial connection with an illegitimate, the father, if he is not living
with the mother as his "unmarried wife", will probably do so from the
outset. The mother, on the other hand, will retain her connection with
her child in virtually all those cases in which the father does so and also in a
considerable proportion of those in which the father has "jettisoned" it. In
many cases of jettison by a mother the child will be adopted by strangers and so
will cease to be an illegitimate for the purpose of this report. Some cases
occur, of course, in which the mother simply jettisons the child to an
institution, a relation or a friend, but we cannot form any estimate of their
number. " (paragraph 23).
37. In most jurisdictions where the
illegitimate has any right of succession on the intestacy of the father or
his relatives, that right is, made conditional on the relationship
being acknowledged in some formal way by the father, or being adjudged to exist
in the finding of a court (e.g. s.49E(5) of the Administration and Probate
Ordinance, 1929-1965, of the ACT and s.38A of the Decedents Estates Law of
New York, noted in 30 Modern Law Review p.559, fn. 37; see also clause 7
of the New Zealand Bill mentioned in para. 26 above). The Russell Report
recommends that the illegitimate's right should not be limited in this way, but
that the courts should be left to decide in any disputed claim, on
all and any evidence available whether the particular paternity has on
balance of probabilities been established. However, it is acknowledged that
there are strong arguments for limiting the right to succession to cases
in which the father has acknowledged his paternity in some way and we think
that these arguments are fairly stated in the note of dissent to the
Russell Report provided by Sir Hugh Munro-Lucas-Tooth, MP.
38. The
Russell Report rejects the idea that there should be a system whereby
applications might be made on behalf of an illegitimate, for purposes of
prospective succession, for a declaration of paternity, at a time when the facts
were recent and the mother and alleged father alive (paragraph
40).
39. It is appreciated that where there has been no
acknowledgement by the father, either formal or informal, proof will often be
impossible. However, this does not appear to be a reason for denying a right
of succession to those illegitimates who can establish their
relationship.
40. As to the matter of the meaning of "children",
"issue" and similar words in wills; and other instruments, it is arguable that
these words should be accorded their ordinary, literal
Illegitimate Succession – Working Paper / 17 meaning. Arguments to the
contrary appear in the Russell Report (para. 57). Criticism of this part of the
Russell Report has been made by O.M. Stone in the Modern Law Review
(30
Modern Law Review, pp. 556-557).
41. Another matter
that sho uld be mentioned is that giving illegitimate children a right to
succeed on intestacy may serve to exclude a de facto wife --who could be the
mother of the children concerned -from such largesse as might otherwise be
bestowed on her as a "moral" claimant under section 9 of the Escheat
(Procedure) Act, 1940. However, any bad effect that may accrue in this
way could be alleviated by amendments to the Testator’s Family
Maintenance Act. Applications under this Act could be permitted in cases of
intestacy and de facto wives could be added to the category of persons entitled
to make such applications (see para. 66 of the working paper on Project No. 2 -
Testator's Family Maintenance Act).
42. Implementation of the
possible reforms set out in paragraph 31 above would certainly give Western
Australia a law which would have no parallel in Australia. However, there is
already great diversity between the laws of the States and Territories and this
state of affairs seems likely to continue.
43. Uniformity may be
desirable but is by no means essential.
POSSIBLE INCIDENTAL
PROVISIONS
44. If the possible reforms mentioned in para. 31
above were to be implemented, it might be thought desirable to provide also
–
(1) that no new rule should affect - so far as intestacy is
concerned - the estate of any person dying before the relevant legislation comes
into effect, nor - so far as concerns the interpretation of the terms
"children", "issue" etc. as appearing in wills - any will or other testamentary
instrument made before that time;
(2) for special protection for
those (administrators etc.) who distribute estates in ignorance of the existence
of an illegitimate claimant, and for a statement that, for the purposes of
distribution, evidence of the absence of illegitimates is not required;
18 / Illegitimate Succession – Working Paper
(3) for the
"rule of convenience" recommended in the Russell Report, to the effect that, for
purposes of distribution on an illegitimate's intestacy, the father of the
illegitimate shall be deemed to have predeceased the intestate unless
the contrary is established.