A Illegitimate Child’s Rights To Inherit The Parent’s Wealth (Died without a will)

Written by Tanushaa Dewi

When a child is born out of wedlock (where both parents were not married to each other at the time), the said child is known as an Illegitimate Child. In Latin, an illegitimate child is known as filius nullius which means son of nobody. An illegitimate child unless legitimised by marriage (Section 4 of the Legitimacy Act 1961) or adoption, will not only endure hardship in terms of their rights to have their nationality, citizenship, and name but would face difficulty in inheriting their parent’s wealth. 

Previously under the law of Malaysia, an illegitimate child was only related to its mother and allowed to inherit the estate of its mother provided the mother did not have any legitimate children (Section 11 Legitimacy Act 1961). In this context, an illegitimate child previously was assumed to have no right whatsoever to their deceased father’s estate unless there was a will made. 

On 18th January 2023, in the recent Federal Court decision of Tan Kah Fatt & Anor v. Tan Ying [2023] 2 MLRA 525, the Federal Court Judge, Justice Dato’ Mary Lim Thiam Suan, along with two other judges, have decided unanimously that in the circumstances where both parents have died without leaving a will, an illegitimate child has a right to inherit their parent’s wealth as an “issue” under the Distribution Act 1958.   

Section 3 of the Distribution Act 1958 defined a child to be:- 

“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 [Act 257];

Whereas, defines an issue to be:- 

“issue” includes children and the descendants of deceased children

If any person had died without leaving a will, their estate will be divided according to the law under the Distribution Act 1958 which is the main legislation that governs the law of distribution of the intestate estates

Section 5 of the Distribution Act 1958 was highlighted by the Federal Court in the above-mentioned Tan Kah Fatt case whereby distribution under the Act adopts the principle of parity and a person is potentially a beneficiary so long as some lineal blood connection with the deceased can be established:-

5. Persons held to be similarly related to deceased 

For the purpose of distribution under this Act, there shall be no distinction between those who are related to the deceased person through his father and those who are related to him through his mother, nor between those who are related to him by the full blood and those who are related by the half blood, nor between those who were actually born in his lifetime and those who at the date of his death were only conceived in the womb but who have subsequently been born alive.

The Federal Court Judge also denotes that the word “issue” was used instead of “child” in Section 6 of the Distribution Act 1958.

6. Succession to intestate estates 

(1) After the commencement of this Act, if any person shall die intestate as to any property to which he is beneficially entitled for an interest which does not cease on his death, such property or the proceeds thereof after payment thereout of the expenses of due administration shall, subject to the provisions of section 4, be distributed in the manner or be held on the trusts mentioned in this section, namely—

(g) if an intestate dies leaving a spouse, issue and parent or parents, the surviving spouse shall be entitled to one quarter of the estate, the issue shall be entitled to one half of the estate and the parent or parents the remaining one-quarter

As such, in circumstances where either parent has died without leaving a will, an illegitimate child would have the right to inherit the estate of their parents in accordance with the provisions of the Distribution Act 1958. This enshrines Article 8 of the Federal Constitution whereby all persons are equal before the law and entitled to equal protection of the law (Article 8 of the Federal Constitution).

Disclaimer: The contents of this article are for general informational purposes only and do not and are not intended to constitute legal advice. Readers should contact us to obtain legal advice with respect to any particular legal matter.