Introduction
Facts

High Court and Court of Appeal
Federal Court
Comment


Introduction

In Malaysia, when someone dies without leaving a will, their estate will be distributed in accordance with section 6 of the Distribution Act 1958 (the Act), which provides a structured order of succession.

Persons who are entitled to inherit the estate are, among others, the deceased's:

  • spouse;
  • issue; and
  • parents.

Under the interpretation provision of the Act, section 3 provides that:

  • "child" means "a legitimate child and where the deceased is permitted by his personal law a plurality of wives includes a child by any of such wives, but does not include an adopted child other than a child adopted under the provisions of the Adoption Act 1952"; and
  • "issue" includes "children and the descendants of deceased children".

In the past, it had always been understood that an illegitimate child was not entitled to inheritance because the word "issue", when read with the definition for "child", leaves no room for illegitimate children.

However, the Federal Court recently clarified and corrected the above understanding in Tan Kah Fatt & Anor v Tan Ying.(1)

Facts

The deceased passed away intestate, leaving a wife, a daughter, parents, and a younger brother. The marriage between the deceased and the wife was registered under the Law Reform (Marriage and Divorce) Act 1976.

Prior to the marriage, the deceased had a relationship with another woman, but they only underwent a Chinese customary marriage. They had a daughter, the second appellant, whose birth was registered under a provision governing the registration of illegitimate children.

High Court and Court of Appeal

Both the High Court and the Court of Appeal found that the second appellant was an illegitimate child and, therefore, had no right to succeed in the estate of the deceased.

The main issue before the Federal Court was whether an illegitimate child is excluded from succession under the Act.

Federal Court

"Issue" does not mean "child"
At the outset, the Federal Court held that it is improper and wrong to ascribe the definition of "child" to the term "issue" when interpreting section 6 of the Act as:

  • both terms are separately defined in section 3 of the Act;
  • section 6 of the Act uses the word "issue" and not "child"; and
  • the term "child" is used elsewhere in the Act, but not in section 6.

The High Court and the Court of Appeal were wrong in treating the term "issue" in section 6 of the Act as being the same as the term "child" and, therefore, holding that an illegitimate child is not entitled to inherit the deceased's estate.

The Federal Court observed that section 3 of the Act provides for an enlarging or non-exhaustive definition of the term "issue". The definition utilises the word "includes" as opposed to the word "means", which is used for the term "child". By virtue of the word "includes", the primary meaning of "issue" can be enlarged to cover the scope or prescription of meanings that may fall within its group of meanings.

Having considered the dictionary definitions of the term "issue" and its ordinary or natural meaning, the Federal Court found that "issue" suggests descendants by blood lineage, not dependant on legitimacy of the descendant. The right to inherit is, therefore, based on blood lineage connection between the deceased and the person claiming succession.

The Federal Court also noted that in light of the term "issue" being used in section 6, as opposed to "children" or ''child", the intent is obviously to expand or enlarge the category of persons who may inherit. Such a reading is in consonant with the purpose of the Act – that is, for distribution of the estate of the intestate and not legitimacy of the deceased's child. It also complies with the equality guarantees in article 8 of the Federal Constitution that there should not be discrimination between all offspring of the deceased.

Based on the above, the Federal Court held that the second appellant was entitled to inherit under section 6 of the Act as an issue and descendant of her deceased father, irrespective of her legitimacy.

Children from illegitimate marriages can still be legitimate
Section 75(2) of the Law Reform (Marriage and Divorce) Act 1976 provides that the child of an illegitimate marriage will be treated as the legitimate child of their parent if, at the time of the solemnisation of the marriage, both or either of the parties reasonably believed that the marriage was valid.

The Federal Court found that there was evidence proving the belief that the marriage between the deceased and the second appellant's mother was valid.

As such, the Federal Court held that the second appellant was in fact a legitimate child by virtue of section 75(2).

Comment

The Federal Court's decision is certainly a welcomed one. It not only protects and upholds the inheritance rights of illegitimate children, but also sends a strong message to society at large that illegitimate children should not be discriminated against in terms of their rights and relationship with their biological parent.

For further information on this topic please contact Lee Sze Ching (Ashley) at Gan Partnership by telephone (+603 7931 7060) or email ([email protected]). The Gan Partnership website can be accessed at www.ganlaw.my.

Endnotes

(1) [2023] 2 CLJ 169.