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Case Update: Illegitimate Child entitled to inheritance from parent who died intestate

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31 January 2023

LAW OF SUCCESSION
Illegitimate – Intestacy – Child – Chinese Customary Marriage – Law Reform (Marriage and Divorce) Act 1976 – Distribution Act 1958 – Non-Discriminatory

Tan Kah Fatt & Anor v Tan Ying
Civil Appeal No. 02(f)-82-10/2019 | Federal Court
- see the grounds of judgment here

Facts This dispute arose following the death of Tan Kah Yong (the ‘Deceased’) where he left behind a wife to which he was married to under the Law Reform (Marriage & Divorce) Act 1976 (‘LRA 1976’), Tan Ying (the ‘Respondent’) and a daughter. He also left behind another daughter named Tan Sin Yee (the ‘2nd Appellant’) who was born earlier to a woman whom he had only underwent a Chinese customary marriage. Further to that, he was survived by his parents and younger brother, Tan Kah Fatt (the ‘1st Appellant’). Upon the deceased death, the 1st Appellant and Respondent were named as joint-administrator. This case involved 2 suits; where the Respondent was asking for the 1st Appellant to be removed as joint-administrator on the ground of conflict of interest (‘Suit 1’) as he is also one of the directors in the companies seeking to recover from the estate of the deceased, monies paid under the insurance policy as the deceased was the director, shareholder and co-owner of the companies (‘Suit 2’). In addition, the Respondent asserts that the 1st Appellant had misrepresented to her that despite being illegitimate, the 2nd Appellant was entitled to inherit under the laws of intestacy thereby inducing her to include the 2nd Appellant as one of the beneficiaries of the estate of the deceased. The Respondent claimed that it was only after the assets had been distributed that she learnt otherwise to be the correct position in law. The Respondent thus sought a declaration to the effect that the 2nd Appellant, as an illegitimate child, does not have a legal right to claim an interest in the estate of the deceased and was consequentially obliged to return monies already received. At the High Court, the learned Judge decided that the 2nd Appellant was an illegitimate child by virtue of the fact that the customary marriage which her parents underwent was not a valid marriage under the LRA 1976, therefore, she was not entitled to inherit under the Distribution Act 1958 (DA 1958). The High Court also agreed with the Respondent’s contention and granted the removal of the 1st Appellant as joint-administrator. Both decisions were upheld by the Court of Appeal. Hence, this appeal. 

Issue 1. Whether the term ‘child’ as defined in section 3 of the DA 1958 includes a child born of a Chinese customary marriage?
2. Whether the term ‘child’ in section 3 of the DA 1958 read with section 75(2) of the LRA 1976 includes a child born of a Chinese customary marriage as a legitimate child for succession purposes?
3. Whether the term ‘child’ and ‘issue’ in the DA 1958 should be read in a non-discriminatory way in light of Article 8 of the Federal Constitution to include all the natural born children of the deceased?
4. Whether the removal of the appointment of co-administrator by letter of administration duly granted by the High Court can be undertaken other than under the grounds applicable for the revocation of a grant or removal of administrator under section 34 of the Probate and Administration Act 1959 which relates to the interest of the beneficiaries of the estate?

Held In allowing the appeal, Federal Court Judge Mary Lim, held that the DA 1958 does not, whether expressly or by implication, state that only legitimate children may inherit in the case of intestacy. On the contrary, the Federal Court held that nowhere in s. 6 DA 1958 is the term “child” used and what is used is the term “issue”. The term “issue” utilises the word “includes” while “child” is defined in more definitive language with the word “means”. Generally, the presence of the word “includes” in the definition of a term suggests an enlarging or non-exhaustive definition as opposed to the use of the more definitive or comprehensive word “means”, found in the definition of “child”. In looking at the natural and ordinary meaning of the word “issue”, the Federal Court held that the term “issue” in relation to the deceased suggests descendants by blood lineage, not dependent on the matter of legitimacy of the descendant. Here, the right to inherit lasts so long as there is established some genetical or blood lineage connection between the person claiming succession in the distribution with the deceased. The definition of “issue” in s. 3 DA 1958 seeks to statutorily extend the generational lineage to beyond the immediate persons who may properly be counted as issue, to the offspring or grandchildren, even if the immediate parents of such grandchildren are themselves deceased. Next, in relation to the removal of the joint-administrator, the Federal Court held that there was no proper consideration by the High Court of whether there was proof of sufficient cause, the welfare, interests and benefit of all the beneficiaries of the estate of the deceased. The sufficiency of cause for any removal of an appointment by the Court must be taken carefully, weighing the grounds of complaint against the welfare and interests of all beneficiaries. Hence, the Federal Court held that the appeal must be allowed and the decisions of the Courts below set aside.

Zul Rafique & Partners
{31 January 2023}

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