Illegitimacy and Inheritance in Malaysia: Two Cautionary Tales

by Cassandra Lee ~ 7 May 2019

Illegitimacy and Inheritance in Malaysia: Two Cautionary Tales

Let’s begin...

In this piece, I seek to outline the trouble with inheritance laws in Malaysia[1] in so far as it concerns children deemed to be illegitimate. I draw examples from 2 recent High Court decisions which, in my opinion, demonstrate in reality the harshness of our current laws to children deemed illegitimate under Malaysian law. These 2 cases are:

  1. Maxwell John Gray (as administrator/trustee for the estate of Cory John Gray, deceased) v Lim Siew Shun[2] (the “Maxwell John Gray case”); and
  2. Tan Ying v Tan Kah Fatt & Anor and another appeal[3] (the “Tan Ying case”).

The lessons we can learn from these 2 recent High Court decisions are:

  1. Never draft your own Will unless you are a legally trained probate practitioner; and
  2. If you have children out of wedlock and intend to provide for them when you are gone, make sure you make a Will;

It is not enough to simply make a Will. To avoid the situation in the Maxwell John Gray case, you should name each child you wish to make a beneficiary of your estate, especially if they are born out of wedlock and have not been legitimized under the law.

I will confine this discussion to the position of children born out of wedlock and who are not subsequently legitimized under the provisions of the Legitimacy Act, 1961 (for example, by virtue of the subsequent marriage of their parents), i.e. children who are deemed “illegitimate” for the purposes of inheriting from an estate where a parent dies intestate (read: without leaving a Will). There are actually other ways in which a child can be deemed illegitimate, but we shall keep that discussion for another day.

In short, the law provides for limited circumstances in which an “illegitimate child” can inherit from his parents’ estate. An “illegitimate child” is entitled to inherit from his/her mother’s estate IF she dies without leaving a Will and does not have any legitimate children. The law suggests that an illegitimate child loses his/her rights of inheritance in the event the mother dies without leaving a Will but leaves legitimate children, presumably from an earlier or later marriage.

In the case of inheriting from his/her father’s estate, a child deemed to be “illegitimate” is NOT entitled to inherit from his/her deceased father’s estate should he die without leaving a Will. Generally, having a well-drafted Will can overcome these limitations. However, a poorly drafted Will can cause serious implications, as can be seen from the Maxwell John Gray case.

Generally, having a well-drafted Will can overcome these limitations.

The legal definition of a “child”

A “child” is defined in section 3 of the Distribution Act, 1958 as “a legitimate child and where the deceased is permitted by his personal law a plurality of wives includes a child by any such wives, but does not include an adopted child adopted under the provisions of the Adoption Act, 1952 or the Adoption Ordinance of the State of Sarawak.

A similar definition is seen in section 3 of the Intestate Succession Ordinance 1960 which applies in the state of Sabah.

“Legitimate child”

In simple terms, a “legitimate child” is a child born in wedlock or having been legitimized pursuant to the provisions of the Legitimacy Act, 1961. For example, a child born out of wedlock can be legitimized through the subsequent marriage of his/her parents[4].

For the purposes of this discussion, an “illegitimate child” is therefore one who is born out of wedlock and was not legitimized pursuant to the provisions of the Legitimacy Act, 1961.

The Maxwell John Gray case

In this unfortunate case, the executor of the deceased’s estate brought an action against the deceased’s “wife” (“the Defendant”) for vacant possession of a house owned by the deceased. The Defendant, in resisting the action, argued that she and her child were entitled to remain and stay in the house because she was the wife of the deceased and the child was the deceased’s biological child. Here’s the catch - the deceased married the Defendant through a customary marriage. Arguments put forth by the Defendant were rejected by the High Court. The High Court found that since the alleged customary marriage was never solemnized and registered under the Law Reform (Marriage and Divorce Act) 1976, the customary marriage was not recognized by law and thus, the child was deemed to be born out of wedlock and as such deemed to be an illegitimate child.

The question of the child’s legitimacy was also an important consideration in this case because the deceased had actually executed a Will more than 2 years after the customary marriage took place and after the child was born in which he made reference to the word “children” in the Will. Clause 3 of the deceased’s Will stated as follows:

“I GIVE all my personal chattels including motor vehicles equally for those my children who survive me.”

The Defendant quite cleverly argued that, since the deceased had only 1 other child from his previous marriage, the word “children” used by the deceased in his Will is meant to include her child. It is important to note that in this case, there is no dispute that the Defendant’s child was the deceased’s biological child.

The High Court rejected the Defendant’s argument and, in doing so, suggests that the word “children” used in the deceased’s Will can only be interpreted to mean “legitimate children”. The Defendant’s child with the deceased was as such excluded from the deceased’s Will because he was born out of wedlock. The High Court also held that had the deceased intended to name both the Defendant and her child as beneficiaries of the estate, he would have named them in the Will.

In my opinion, the High Court’s decision raises a number of serious questions.

Firstly, it is debatable whether the learned judge, who was essentially interpreting the terms of the deceased’s Will, gave effect to the deceased’s true intentions. On the flip side of the argument, should the deceased intended to provide only for his legitimate children, wouldn’t he have used the words “legitimate children” in his Will instead of just the general term “children”? Couldn’t the exclusion of the Defendant and her child be done expressly instead if the deceased so wishes to?

In a case where the deceased died leaving a Will, the question of a child’s legitimacy, in my opinion, should not be of importance especially in a case where the paternity of the child is not in question. The Court may serve the parties’ interests better by interpreting the deceased’s Will to give effects to the deceased’s true intentions.

This case serves as a cautionary tale to those who may have more complex family relationships to never attempt to draft their own Wills, at least not without proper legal advice.

The Tan Ying case

In comparison to the Maxwell John Gray case, the High Court in the Tan Ying case was called upon to determine a child’s legitimacy for inheritance purposes as her late father had died without leaving a Will.

In the Tan Ying case, legal suits were filed by the lawful wife of the deceased to seek, amongst others, a declaration that the child fathered by the deceased with another woman is an illegitimate child and hence, will not have the right to claim an interest in the deceased’s estate. Sadly but quite rightly, based on the present law of this country, the High Court granted the unfortunate declaration.

We can take comfort that the harsh realities of these laws were expressly recognised by the learned Judicial Commissioner in her decision where she held as follows:

“It is trite that a court of law is only duty bound to interpret the provisions as is passed by the legislature. In that light it does not have the power to read deeming provisions into the said Act in the event of a lacunae as that power resides with the legislature. In the circumstances I am granting the declaration that the said child D2…in Suit-1 is an illegitimate child and consequently will not have the right under the present law to claim an interest in the estate of the deceased father. Unless and until that position in the Distribution Act of 1958 is altered by the legislature, the court is bound by its limitation no matter how harsh it may appear. Such duty of the legislature cannot be surrogated to the courts of law.”

The need for reform in this area of law

The area of law regarding inheritance for illegitimate children is in much need for reform. In my opinion, the law in its current form has no place in modern society. In the absence of a Will, the law should provide each and every biological child with equal inheritance rights. The law in its current form seems to penalize or punish a child, in so far as his inheritance rights are concerned, for the ignorance, faults, failings or folly of his parents.

The two cases discussed here demonstrate what I believe would be painful examples of innocent children being caught in battles they certainly did not ask or wish to be in. Maybe there is room to argue that the adults in these cases failed them. But to err is only human. Our laws, on the other hand, should seek to address such human failings.

[1] This article discusses primarily the application of the Distribution Act, 1958 which applies in Peninsular Malaysia & Sarawak (by virtue of the Modification of Laws (Distribution Act 1958) (Extension to the State of Sarawak) Order 1986 (U (A) 446/86 which came into force on 12.12.1986).
[3] [2018] MLJU 1070; [2018] 1 LNS 1084
[4] Sections 4 and 5 of the Legitimacy Act, 1961.
The information and views set out in this note are those of the author(s) and do not necessarily reflect the official opinion of Thomas Philip.