On January 18, 2023, the Federal Court of Malaysia, Malaysia’s highest court, issued a decision in a case in which the illegitimate non-Muslim daughter of a businessman who died intestate sought the right to inherit a portion of his estate. (Tan Kah Fatt & Tan Sin Yee v Tan Ying, Rayuan Sivil No.: 02(f)-82-10/2019(B) (Jan. 18, 2023) (Federal Court of Malaysia).) In what a media article described as a landmark ruling, the court unanimously held that the daughter was able to inherit from the estate under the Distribution Act 1958 [Act 300].
The Distribution Act, which applies only to non-Muslims in Malaysia (except those in the state of Sabah), regulates the distribution of the estate of any person who dies intestate. In the case before the court, the appellant’s mother had undergone a Chinese customary marriage with the businessman, which had not been registered under the Law Reform (Marriage and Divorce) Act 1976 [Act 164], the law applicable to marriages between non-Muslims. The appellant was born during that relationship and her birth was registered under section 13 of the Births and Deaths Registration Act 1957 [Act 299], which governs the registration of illegitimate children. The businessman subsequently formally married another woman (the respondent in the case), with another daughter subsequently born to that marriage. Upon the businessman’s death, his second wife and his brother became coadministrators of his estate, and the brother informed the wife that the illegitimate daughter was entitled to inherit part of the estate. After learning that this was not the correct interpretation of the law, the wife sought a declaration that the illegitimate daughter did not have a legal right to claim an interest in the estate and should therefore return the money she had already received.
The High Court held that the customary marriage was not a valid marriage under the Law Reform (Marriage and Divorce) Act 1976, and that, as an illegitimate child, the first daughter was not entitled to inherit under the Distribution Act 1958. This decision was upheld by the Court of Appeal. (Tan Ying Decision paras. 10–16.) On appeal, the Federal Court determined that four questions related to the inheritance rights of an illegitimate child needed to be addressed, including whether the term “child” in section 3 of the Distribution Act includes a child born to a Chinese customary marriage, whether the child of such a marriage could be legitimate under that act and the Law Reform (Marriage and Divorce) Act for succession purposes, and whether the terms “child” and “issue” in the Distribution Act should be read in a nondiscriminatory way in light of article 8 of the Federal Constitution to include all natural born children of the deceased. (Para. 2.)
Section 6(g) of the Distribution Act, at issue in the case, provides that “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.” The court noted that the section does not refer to “child” at all, only to “issue.” “Child” is defined in the act as specifically referring only to a legitimate child of the deceased, whereas “issue” “includes the children and the descendants of deceased children.”
The Federal Court disagreed with the lower courts that the relevant provisions, when read with the definition of “child,” leave no room for the inclusion of illegitimate children under section 6. It found that “it is not in dispute that the [appellant] is an issue of the deceased. Her birth certificate attests to that lineage. Consistent with the intent and purpose of Act 300, it cannot be denied that the [appellant] falls within the meaning and scope of the term “issue” in which case she is indeed, entitled to succeed and inherit under section 6. As an issue and descendent of her deceased father, her alleged lack of legitimacy does not deprive of her succession under section 6.” (Para. 78.) In addition, the court stated that such a reading “complies with the equality guarantees in Article 8 of the Federal Constitution as there is no logical or rational differentiation to discriminate between all offspring of the deceased.” (Para. 81.)
Kelly Buchanan, Law Library of Congress
February 8, 2023
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