FAMILY LAW II

WORKSHEET 5(ii) – FINANCIAL SUPPORT AND PROPERTYRIGHTS

INHERITANCE RIGHTS - 2011-03-15
INTRODUCTION
The status of children legislation or its equivalent in almost every Commonwealth Caribbean jurisdiction has
abolished the legal discrimination against children born out of wedlock. The discrimination was no more glaring and
inequitable with regard to property and inheritance rights of such children both on testacy and intestacy.
1. LEGITIMATED CHILD
This is purely of intellectual interest and is not being lectured or focussed on.
2. CHILD BORN OUT OF WEDLOCK
A. Common Law Position:
(i) Intestacy
A child born out of wedlock had no rights of succession on the intestacy of the father parent and he had no
rights to succeed to the estate of a child.
(ii) Testacy
In the absence of evidence to the contrary, the rule of construction at common law is that any reference to a
child or children in a deed will or other testamentary instrument refers only to a child born in wedlock.
In Sydall v Castings [1967] 1 QB 302, a member of a group life insurance scheme died having a wife, children
and grandchildren of the marriage as well as an illegitimate daughter. The trustees of the group sought to
make a payment to this child, who was supported by the man prior to his death. The widow took out letters of
administration and sought a declaration that the illegitimate child was not in the class of beneficiaries. The
county court held that she was. In the Court of Appeal it was held that the illegitimate child did not qualify as
a descendant.
B. Pre-Status of Children Legislation
Pursuant to the respective legitimacy legislation, a child born out of wedlock, in respect of the mother, if she
died leaving no lawful next of kin, which means that she did not get married and had children from that union,
the child had rights of succession. So the child had rights against the mother’s estate and the mother had rights
against the child’s estate once that child did not leave a spouse and or children of a marriage.
That is how the law was prior to the Status of Children legislation.
C. Status of Children Legislation
(i) The Status of Children legislation of the respective Commonwealth Caribbean jurisdictions provide for
the removal of the distinction in the legal status of a child born out of wedlock. The Act is essentially the
same in most jurisdictions. In Barbados the Status of Children Reform Cap. 220 states: -
3. For the purposes of the laws of Barbados, the distinct at common law between the status of children born
within or outside of marriage is abolished, and all children shall, after 1st January, 1980, be of equal status; and
a person is the child of his or her natural parents and his or her status as their child is independent of whether the
child is born within or outside of marriage.
(ii) Scope of the Status of Children Legislation
While the respective legislation provides that it applies to persons born before or after the commencement
date of the Act, there are nonetheless limitations in respect of rights of inheritance in cases of testacy and
intestacy of the parent of a child born out of wedlock.
 Intestacy
The rights of inheritance to the estate of a deceased parent is subject to vested rights – that is, rights
which have accrued prior to the commencement date of the Status of Children legislation.
There is some difference between the legislation in the various territories and those jurisdictions that
speak about vested rights are; Antigua & Barbuda, Grenada and Trinidad & Tobago. In those
jurisdictions, after it states about a child born out of wedlock having the same rights, whether born
before or after the commencement date of the legislation. It goes on to say at s.4 (1) ‘The Act does not
affect rights which became vested before its commencement.’
The case which explains the meaning of vested rights is Re Schuler’s Estate (1985) 37 WIR 371.
(Please note, the Status of Children Act of Trinidad & Tobago became operational in March 1983.) In
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 this case Suzanne was born out of wedlock to Andrew, who died intestate in 1982. He had never
married but was also survived by his lawful brother and sister (M and G). Suzanne argued that she
was entitled to her father’s estate since at the commencement date of the legislation, her father’s estate
had not yet been administered, in particular it had not been distributed to her father’s lawful next of
kin and as such they would suffer no prejudice and accordingly she was entitled to a share of her
father’s estate. Everything turned on the meaning of the word ‘vested’. Her argument was that
‘vested’ as used in the legislation meant vested in possession and used as support for her argument, a
case that was decided by Edoo J in 1984 – Re Pantin’s Estate (Unreported), in which case Edoo J
interpreted the word ‘vested’ to mean vested in possession. Because of that narrow interpretation,
since on the facts that on the date of the amendment to the legislation with respect to adopted children,
which amendment provided that an adopted child takes from the estate of his adoptive parents. The
legislation had been amended and since at the date when that had happened, the mother’s estate had
not been distributed, Edoo J took the view that the adopted child was also entitled equally as the
lawful natural children and the husband. The Court of Appeal concluded that Edoo J was wrong in
law and the term ‘subject to rights vested’ meant vested in interest and not in possession, and vested
in interest meant a present right to future possessions. Accordingly, the court held that when
Suzanne’s father died, in January 1982, the rights to his estate were vested in interest in M and J, who
were entitled to share the brother’s net estate, even though the estate was not as yet vested in
possession. The bottom line to all of that is that s. 4 (1) precludes any claim from a child born out of
wedlock, in relation to an intestacy, where death took place before the commencement date of the
legislation, except if there is no lawful next of kin, the child born out of wedlock would be entitled,
even though the intestate father died before the commencement date.
The difference is important because prior to the change in law, if there were no lawful next of kin, it
went to the State. Any child born out of wedlock would not be considered a next of kin, so that child
would not have a right to the estate; it went straight to the State. The difference between Antigua,
Grenada and Trinidad is that if there are no lawful next of kin in these jurisdictions, the child can get,
because it is subject to the rights that are vested; but in all other jurisdictions, the law is clear – the
rights of a child born out of wedlock, only become effective upon the commencement date of the
legislation, there are no rights before that date.
What is the position of the father?
In Antigua & Barbuda and Trinidad & Tobago, the legislation actually says that there is no
presumption that the child is survived by the father or paternal relatives, unless the contrary is shown,
but the father can apply even if the child has pre-deceased him.
In the Bahamas, Barbados and Grenada, where there is no statutory presumption, the father cannot
apply for a paternity order if the child pre-deceased him.
Where the presumption applies you can apply; however, in Grenada, the balance of proof is ‘beyond a
reasonable doubt’. In the Bahamas and Barbados it states that ‘the court must be satisfied’.
In Jamaica in the case of succession rights, if it is for the benefit of the father, paternity has to be
admitted during, or prior to the child’s birth. In other words if paternity was not acknowledged when
the child was alive, it cannot be done after the child’s death.
 Testacy
In cases of testacy, while the common law rule of construction which provides that the words child or
children in a will does not refer to a child born out of wedlock, in the absence of a contrary intention
is abolished. The statutory rule of construction contained in the Status of Children legislation applies
only to wills made after the commencement date of the legislation.
If a will was made before the commencement date of the legislation, and words such as ‘my children
or issue’ were used and the testator died after the legislation date. Those words will have a statutory
rule of interpretation and include a child born out of wedlock, unless the contrary is shown. The issue
is where there is a codicil and there is a difference between Trinidad & Tobago and, Jamaica and
Antigua. It comes back to the same word vested. E.g., if there is a will that existed before the
commencement date and the words ‘my children’ were used, the legislation is passed in 1983 and in
1986 a codicil is made to the will and there is no mention of the children in the codicil. In Trinidad &
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 Tobago, Jamaica and Antigua & Barbuda, the legislation states that instead of applying the statutory
rule to the codicil, the common law rule is applied. Therefore unless a contrary intention is shown it
will not include a child born out of wedlock.
3. ADOPTED CHILD
A. The 1926 Adoption of Children Act
For the purposes of succession rights, the child of the adopter was deemed to remain the child of his
natural parents.
B. The 1949 Adoption of Children Legislation
Where after the date of adoption, the adopter or the adopted person or any other person dies intestate, the
real and personal property of such intestate shall devolve in all respects as if the adopted child were the
child of the adopter born in wedlock, and not the child of any other person.
C. Current Position
 Intestacy
After an adoption order is made, the adopted child ceases to be a child of the biological parent.
 Testacy
In the absence of a contrary intention in respect of an instrument made prior to the date of adoption,
or any reference expressed or implied to a child or children of the adopter shall include the adopted
child.