FAMILY LAW – DISTRIBUTION OF ASSETS – ILLEGITIMATE CHILD

A had mistress and a wife; both of whom had given birth to a child each. A died without a will. Can the child of the mistress be entitled to succeed and inherit A’s property under the Distribution Act 1958?

Distribution Act 1958 (“DA 1958”) applies when a person dies without a will. This is called intestate in law.
When A dies intestate leaving a spouse and issue but no parent or parents, spouse is entitled to 1/3 and the issue the remaining 2/3.
If there are parents, then parents 1/4, spouse 1/4 and the issue shall be entitled to 1/2.
This is set out in Section 6 of the DA 1958.

Is the illegitimate child entitled to succeed and inherit A’s property?

Yes. Section 6 of the DA 1958 uses the word “issue” and not “child”.
Section 6 of the DA 1958 did not state only legitimate child could inherit the property of the intestate.
The Federal Court in Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLJ 583 held the words “child” and “issue” are different.
Although child is defined as “legitimate child” in Section 3, Section 6 of the DA 1958 on distribution uses the word “issue” and not child.
The dictionary meaning of the word issue suggest descendants by blood lineage. Not dependent on the matter of legitimacy of the descendant.
As long as the child of the mistress is a descendant by blood lineage, he/she is entitled to inherit the property of A under the DA 1958.

(Case in Point: Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLJ 583)

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