I have just been on a webinar about intestacy through Anglia Research and it has raised some questions, I tried to ask there but didn’t really get the answer to the question I was trying to ask.
They advised that if a man dies intestate and he is not on the birth certificate on his child then the child will not be a benificiary as they cannot prove they are a child of the intestate.
I have not had to deal with this before but this doesn’t seem right to me, and surely this would also then stop then being a benificiary to a will if the testator only put ‘my children’ rather than naming them all. (I asked this but they said they’d never seen a will that didn’t name all the children so it didn’t really get answered)
On an intestacy its a matter of evidence. The birth certificate is very good evidence if the father is named. Absent that, the administrator and default heirs can agree that of course the individual is the deceased’s child or, in the event of dispute, the child can present evidence such as DNA evidence.
Under a will, it is a matter of evidence and also construction. There was a very recent case (I’m afraid I only saw it in the newspaper) where DNA evidence showed that a “son” was not actually the son of the testator but, as the testator hadn’t known this, the relevant phrase (“children” or “sons”) should be construed to include the “son”.
I have not come across the intestacy point (now governed by ss1 and 18 FLRA 1987) but in wills it was my practice to absolve the executors from having to search for an unknown possible “child”. Most testators these days do not restrict a gift “to my children” to legitimate persons (the opposite is the default position) and certainly that might be highly undesirable as regards remoter issue unborn at the date of death or even at the making of the Will. The modern predilection for couples not to marry might exclude persons whom the testator would have wished to benefit had he known about them in life. I certainly met unknown remoter issue cases.
So naming children and grandchildren will not help with unborns. It does leave open the problem that a claimant may emerge who can prove that he or she is a child or remoter descendant of the deceased and entitled to share in a class gift, perhaps even after full distribution. A claim to be an eligible beneficiary of a will trust is also a possibility though in a DT the additional hurdle is that the right of any such is only that of being considered… An executor should be protected by s61 TA 1925 and any specific wording in the Will but that will not shut out a valid claim based on evidence, subject to time limits. s27(2)(a) and (b) TA 1925 preserve such claims in principle.
When the default rules changed in 1969, so that illegitimate children are included in that term when used as a general definition, thought was originally given to the problem by s17 FLRA 1969 which protected trustees and PRs against distribution without notice. But it was repealed by s20 FLRA 1987. That Act dealt in s18 with intestate succession rights of such children, with their property rights in s19 and entitlement to probate in s21. All repealed. s5 dealing with family provision was repealed by the 1975 Act and an applicant includes a “child” which term is now inclusive. So the legislature made a conscious act to deprive trustees and PRs of protection. So they are left with the dubious provisions of the Limitation Act 1980 ss 15, 18, 21, 22 and the [dreaded] s32.