What Falls Within The Ambit of ‘Legitimate Child’ Under The Malaysia’s Distribution Act 1958?

Authored by Loh Yi Qing and Tan Yi Xuan



Introduction

An illegitimate child is a person born out of wedlock, i.e., to parents who are not married to each other. In the case of a Muslim child, one is also considered illegitimate when conceived less than six (6) months after the parents’ marriage and as a result, he/she cannot bear their father’s name.[1]


If a non-Muslim dies intestate, i.e., without leaving a Will in Malaysia, his/her estate will be distributed in accordance with the Distribution Act 1958. For the avoidance of doubt, the Distribution Act 1958 is only applicable to non-Muslims in West Malaysia and the state of Sarawak. As for the state of Sabah, it will be distributed in accordance with the Intestate Succession Ordinance 1960. Whereas for Muslims in Malaysia, their estate will be distributed in accordance with Syariah law.


For the purpose of this article, section 3 of Distribution Act 1958 defines a ‘child’ as

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.”[2]


Therefore, a child only has the right of inheritance if he/she is a legitimate child. In the case of Tan Ying v Tan Kah Fatt, the court held that since the child is an illegitimate child, she will not have right to claim the estate of her deceased father:

“…I am granting the declaration that the said child D2 (Tan Sin Yee) 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.”[3]


Legitimate child under the Distribution Act 1958

Legitimate child is a person born in wedlock, or having been legitimized pursuant to section 4 of the Legitimacy Act 1961 which states that if parents of an illegitimate person marry or have married one another, the marriage shall render the person legitimate.[4]


If a child was adopted in accordance with the Adoption Act 1952, it will also render the child to be a legitimate child under the Distribution Act.


Now, what happens if the parents of the child were not married in accordance with the Law Reform (Marriage and Divorce) Act 1976?


Customary marriage

In the case of Maxwell John Gray,[5] the deceased and his wife, the defendant, had a customary marriage which was not solemnized and therefore is not recognised by law, hence the child was considered to be conceived out of wedlock and was an illegitimate child. The counsel for the defendant (deceased’s wife) argued that since the Will stated “children” and the deceased had only one child from his previous marriage, it should include the defendant’s child. The High Court nevertheless held that the child is illegitimate and is not entitled to be the beneficiary of the Will, and in the event if the deceased intended to include both the defendant and the child as beneficiaries, they should be named in his Will.


This case clearly shows that even though paternity of the child is not in question, since it was a customary marriage which is not recognised in Malaysia, the child will not be considered as legitimate. A child will only be considered legitimate if the parents were married in accordance with Law Reform (Marriage and Divorce) Act 1976. This case also demonstrates the importance of a well drafted Will, especially in a more complex family structure.


Does having the father’s name on the child’s birth certificate automatically legitimises the status of the child?

Under section 13A(2) of the Births and Deaths Registration Act 1957, the surname of an illegitimate child may be the mother’s surname if the mother is the informant and volunteers the information; provided that where the person acknowledging himself to be the father of the child, the surname may be the surname of that person.[6]However, this section is not applicable to the Malay naming system because Muslims have no surname.[7]


In the case of Sean O’ Casey Patterson,[8] having the father’s name on the birth certificate will have no effect on the child’s legitimacy. The Federal Court upheld the decision of the High Court that the plaintiff, father of the child (J), should be reinstated as his father in the birth certificate, but J was nevertheless still an illegitimate child because J was born whilst the mother was still married to her first husband.


Therefore, having the name of the father on the birth certificate has no weight on the child’s legitimacy.


Can an illegitimate child inherit the estate of his/her deceased parent(s)?

Be that as it may, an illegitimate child can still inherit his/her deceased parents’ estate pursuant to section 11(1) of the Legitimacy Act 1961,

Where, on or after the prescribed date, the mother of an illegitimate child, the child not being

a legitimated person, dies intestate as respects all or any of her property, and does not leave

any legitimate issue surviving her, the illegitimate child, or if he is dead his issue, shall be

entitled to take any interest therein to which he or his issue would have been entitled if he

had been born legitimate.”


In simple terms, in the event the mother dies intestate having the illegitimate child as her ONLY child, the illegitimate child will be entitled to inherit any or all of her property. However, section 11(1) of the Legitimacy Act 1961 is only applicable in situations where an illegitimate child is to inherit the deceased mother’s property. On the other hand, for the said child to inherit his/her father’s property, it has to be by way of a Will and as seen in the case of Maxwell John Gray, it is important to have a well drafted Will to clearly express the intention of the testator and to ensure it is free of ambiguity.



[1] Meerah Deiwi Raja Gopal, “Does Illegitimacy Status of Children Matter? A Review on Malaysian Perspectives” (2015) Faculty of Business, Communications and Law, Inti International University, Malaysia.

[2] Section 3 of Distribution Act 1958.

[3] Tan Ying v Tan Kah Fatt & Anor [2018] 1 LNS 1084, paragraph [42]

[4] Section 4 of Legitimacy Act 1961.

[5] Maxwell John Gray (As Administrator/ Trustee for the Estate of Cory John Gray, Deceased) v Lim Siew Shun [2019] 8 MLJ 119, paragraphs 33-36, 45, 50

[6] Section 13A(2) of the Birth and Death Registration Act 1957.

[7] Jabatan Pendaftaran Malaysia v A Child [2020] 2 MLJ 277 (FC)

[8] Sean O’ Casey Patterson v Chan Hoong Poh & Ors [2011] 4 MLJ 137, paragraphs 18, 29, 74



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