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EVERYDAY LAW: Act puts child before parent

Cecil McCarthy

EVERYDAY LAW: Act puts child before parent

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IN TODAY’S ARTICLE I respond to a recent email concerning issues of succession law. An edited version of the letter follows:
A relative of mine died a few months ago without leaving a will. He was never married, however, he fathered one child now aged 19. 
She has never lived with him nor he with her mother. 
He left a very significant estate; both real estate and personal estate. He is survived by both parents.  
What are the rights of the parents under the law? 
Is the child entitled to any part of the estate under the law?
Before I respond to this letter, I wish again to emphasise that persons who have accumulated property should give serious consideration to making wills.
It is only through a will or a gift of property inter vivos (during life) that you can with reasonable certainty determine who will be the beneficiaries of your estate.
The average will can be prepared at a reasonable cost and it can be altered from time to time provided the maker retains testamentary capacity.
If no will is made, then the distribution of the deceased’s property is done in accordance with the intestacy provisions of the Succession Act.
These provisions do not always reflect the desire of the intestate who may have communicated his wishes before death but had neglected to make a will.
Where a person dies without having made a will, in the terminology of the law, he has died intestate.
The answer given herein assumes that the person died without having left a spouse within the meaning of the Succession Act. In this regard it should be noted that:
Section 2(3) of the Succession Act defines a spouse to include:
(a) a single man who was living together with a single woman as his wife for a period of not less than five years immediately preceding the date of his death;
Living together
(b) a single woman who was living together with a single man as her husband for a period of not less than five years immediately preceding the date of her death;
If for example, the deceased had been living together with a “single woman as his wife” for at least five years prior to his death, then she would be entitled to a share of his estate. On the facts of the case she would be entitled to a two-thirds share.
Under Section 49 of the Succession Act where an intestate dies leaving issue but no spouse, the estate is distributed between the issue of the deceased.
Assuming that there is only one child of the deceased, then that child is entitled to the entire estate.
Having attained the age of 18 years, an application can be made by the daughter for administration of the estate of the deceased.
As far as parents are concerned, they will only take the full estate where there is no spouse or issue of the deceased surviving the intestate.  In that event they will be entitled to share equally in the estate of the deceased.
Cecil McCarthy is a Queen’s Counsel. [email protected]