Can an illegitimate child inherit his father’s estate?

 Can an illegitimate child inherit his father’s estate?

The answer to the above question is in the affirmative. The Malaysian Federal Court recently ruled that "the right to inherit lasted so long as there was established some genetic or blood lineage connection between the person claiming succession and the deceased." (Tan Kah Fatt & Anor v. Tan Ying [2023] (2 MLRA 525). The Federal Court arrived at its decision after having interpreted Section 3 of the Distribution Act 1958 (which is only applicable in West Malaysia and in the State of Sarawak pursuant to Modification of Laws (Distribution Act 1958) with effect from February 28, 1986) in that "the definition of "issue" in s 3 sought to statutorily extend the generational lineage beyond the immediate persons who might properly be counted as issue, to the offspring or grandchildren, even if the immediate parents of such grandchildren were themselves deceased."

Legitimacy of a child born out of a void marriage

Section 75(2) of the Law Reform (Marriage and Divorce) Act of 1976 said that "the child of a void marriage would be treated as the legitimate child of his parent if, at the time of the solemnization of the marriage, both or either of the parties reasonably believed that the marriage was valid."

The laws of intestacy in Sabah

The applicable law in Sabah on distribution of intestate estates is governed under the Intestate Succession Ordinance 1960 (Sabah No 1 of 1960).

The definitions of "child" and "issue" can be found in Section 3 of the Ordinance. "Section 3. "Child" in this Ordinance means a legitimate child and, if the deceased's personal law allows him to have more than one wife, a child by any of those wives. It also includes any child who was adopted or registered as such under any written law in effect in Sabah. "Issue" means both children and the children of children who have died.

Section 7 of the Intestate Succession Ordinance of 1960 lays out the rules for how the money should be divided.

"RULE (1) If an intestate dies leaving a surviving spouse, no issue and no parent the spouse shall be entitled to the whole of the estate.

RULE (2) If an intestate dies leaving a surviving spouse and issue the spouse shall be entitled to one-third of the estate.

RULE (3) Subject to the rights of the surviving spouse, if any, the estate (both as to the undistributed portion and the reversionary interest) of an intestate who leaves issue shall be distributed by equal portions to and amongst the children of such person dying intestate and such persons as legally represent such children, in case any of the said children be then dead, save that where any child is or was a married woman the amount of her portion shall be reduced by the amount of any money or other property given, paid or settled by the intestate on account of her marriage."

Conclusion

The position of any illegitimate children in the State of Sabah is the same as in the West Malaysia by reason of the interpretation of "issue" under the Intestate Succession Ordinance 1960 (Sabah No 1 of 1960). This means that illegitimate children are entitled to a share in the estate of their intestate parent and will be treated equally with legitimate children.