Inheritance Right of Illegitimate Child in Malaysia: Dawn or Storm after Tan Kah Fatt v Tan Ying

Abstract

Before the Federal Court’s decision in Tan Kah Fatt v Tan Ying (2023), a distinction had always been drawn between the inheritance right of a legitimate child and an illegitimate child in Malaysia. While a legitimate child has an automatic right to inherit the parents’ intestate estate, such right was not available to an illegitimate child. An illegitimate child may only inherit the intestate estate if he has been legitimised. Without legitimisation, an illegitimate child would be ineligible to succeed to his father’s intestate estate. The illegitimate child’s entitlement to succeed on his mother’s intestacy is conditioned on the absence of any legitimate issue surviving the mother. However, Tan Kah Fatt has altered this legal position. This article seeks to examine the change of the law of the inheritance right of illegitimate non-Muslim children in Malaysia, the effects of this Federal Court’s decision and some concerns about this case. Doctrinal research is employed, and the discussion is confined to the law of intestacy for non-Muslims in Malaysia only. This article suggests that amendments of relevant statutes are needed if Malaysia truly intends to equalise the illegitimate child’s inheritance right to intestate estate as that of the legitimate child.