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Tan Kah Fatt & Anor v Tan Ying


In this case, there were altogether five questions posed for the Federal Court to answer, which can largely be summarised into two main parts: (i) the issue of the right of an illegitimate non-Muslim child to inherit under the laws of intestacy, and (ii) the issue of removal of administrators. This case commentary will be focused on the first issue as it involves a constitutional issue, in particular the equality provision enshrined in Article 8 of the Federal Constitution.


The suit arose following the death of one Tan Kah Yong, who passed away on 7th October 2012 due to a motor-vehicle accident (the deceased). He died intestate, i.e. without leaving a will. He left behind a wife, Tan Ying (the Respondent) whom he married on 18th January 2005 and a daughter, Tan Sin Lin born on 2nd January 2009. He also left behind another daughter named Tan Sin Yee, (the second appellant) who was born earlier on 8th October 2002 from his relationship with Lu YanLiu. Both Tan Ying and Lu YanLiu are Chinese nationals. The deceased was also survived by his parents and his younger brother, Tan Kah Fatt (the first appellant), who together with the Respondent were co-administrators of the deceased’s estate.

The marriage between the deceased and Tan Ying was registered under the Law Reform (Marriage & Divorce) Act 1976 (‘LRA’); while the deceased and Lu YanLiu only underwent a Chinese customary marriage. The birth of the second appellant was registered under Section 13 of the Births and Deaths Registration Act 1957, which was a provision governing the registration of illegitimate children. In Malaysia, if a non-Muslim dies intestate, his estate will be distributed in accordance with the Distribution Act 1958 (‘DA’).[1] Thus, the central issue in this case is whether the second appellant, being an illegitimate child, is entitled to inherit under the DA.


Both the High Court and the Court of Appeal found that the second appellant is an illegitimate child by virtue of the fact that the customary marriage which her parents underwent was not a valid marriage under the LRA. As an illegitimate child, she was therefore not entitled to inherit under the DA.


There are several important rulings made by the Federal Court in this case.

First, applying the purposive rule of interpretation,[2] the Federal Court noted that the DA relates to the law of distribution of intestate estates, and not with matters of legitimacy of children or the validity of a marriage.

Second, the most important section in the DA dealing with the order of succession of intestate estates is contained in Section 6. In this regard, the Federal Court noted that in Section 6, the term ‘issue’ is used and not ‘child’. A ‘child’ is said to mean, among others, a legitimate child;[3] whereas an ‘issue’ is defined as including the children and the descendants of deceased children.[4] The Federal Court was of the view that the use of the word ‘child’ in some provisions in the DA (for example, Sections 7 and 9) and the use of the word ‘issue’ in some other provisions in the DA (the most important in this case being Section 6) must mean that there is a difference between a ‘child’ and an ‘issue’. To further reiterate the different meanings in these two words, the Federal Court also looked at the interpretation features employed to define these terms: a ‘child’ is said to mean; whereas an ‘issue’ includes,[5] which necessarily denotes an enlarging or non-exhaustive definition. Applying this to the facts of the case, since it is not disputed that the second appellant is an issue of the deceased by reason of blood lineage, the second appellant therefore falls within the meaning and scope of the term ‘issue’ for the purposes of inheritance under Section 6 of the DA. This, according to the Federal Court, accords with the purpose and intent of the DA.

Third, the Federal Court expressly stated that such an interpretation complies ‘with the equality guarantees in Article 8 of the Federal Constitution as there is no logical or rational differentiation to discriminate between all offspring of the deceased’.

Fourth, the Federal Court also applied Section 75(2) of the LRA which provides that the child of a void marriage shall be treated as the legitimate child of his parents if, at the time of the solemnisation of the marriage, both or either of the parties reasonably believed that the marriage was valid. In this case, there was evidence to suggest that Lu YanLiu had this reasonable belief, corroborated by the evidence given by the deceased’s parents. For this reason, the Federal Court was also of the view that the second appellant is actually a legitimate child entitled to inherit under the deceased’s estate. However, this decision of the Federal Court is at best merely an obiter, as this argument was not addressed in the Courts below and was therefore not one of the issues to be decided by the Federal Court.


There are two monumental outcomes from the decision of the Federal Court in this case.

The first is that in Malaysia, an illegitimate[6] non-Muslim child is now entitled to inherit from his/her father’s estate in accordance with Section 6 of the DA, i.e. where the father has died intestate. Before this case, an illegitimate child can only inherit the estate of his/her mother who died intestate;[7] and the only way an illegitimate child can inherit the estate of his/her father is if the father had left a will specifically naming the illegitimate child as a beneficiary under his will.[8]

Second and more importantly, there is now no distinction between a legitimate and an illegitimate non-Muslim child whose father has died intestate, from inheriting his/her father’s estate under Section 6 of the DA. The underlying enabling provision for this is Article 8 of the Federal Constitution.

This is an especially important ruling, as for the first time in Malaysia, the Federal Constitution has been used in the ambit of private law. It would be remembered that this case is about the rights of an illegitimate non-Muslim child to inherit under the laws of intestacy, and the removal of administrators. There are no public authorities or any State actors involved in this case whatsoever. It is solely a private matter, between private individuals, involving private law. Previously, our courts were reluctant to apply constitutional law in a private law setting. The Malaysian courts had very unfortunately strictly adhered to the private and public law dichotomy under the common law, and held that constitutional law, as a branch of public law, only addressed the contravention of an individual’s rights by a public authority.[9]

Hence, this case is particularly intriguing, interesting and exciting to constitutional law scholars, as it appears to be bridging the divide between private and public law, and making constitutional law applicable even in private conflicts. This decision is to be applauded and welcomed, because the Federal Constitution as the highest law of the land should rightly be applicable to all Malaysians, regardless of ‘religion, race, descent, place of birth or gender’,[10] and regardless of whether a wrong was committed by State actors or private actors. This, it is submitted, would truly cement the Federal Constitution as the ‘document of destiny’[11] for all Malaysians.

REFERENCES [1] This Act applies only in Peninsular Malaysia and Sarawak (by virtue of the Modification of Laws (Distribution Act 1958) (Extension to the State of Sarawak) Order 1986 (PU(A) 446/86) which came into force on 12 December 1986. As for the state of Sabah, it will be distributed in accordance with the Intestate Succession Ordinance 1960. [2] As contained in Section 17A of the Interpretation Acts 1948 and 1967. [3] A ‘legitimate child’ is a child born in wedlock or having been legitimised pursuant to the provisions of the Legitimacy Act 1961, for example when a child born out of wedlock is legitimised through the subsequent marriage of his/her parents (see Sections 4 and 5 of the Legitimacy Act 1961). [4] See Section 3 of the DA. [5] Ibid. [6] A child born out of wedlock, ie to parents who are not legally married to each other. [7] See Section 11(1) of the Legitimacy Act 1961. [8] See 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. [9] See for eg., Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Anor [2005] 3 MLJ 681; AirAsia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ 318. [10] See Article 8(2) of the Federal Constitution. [11] Shad Saleem Faruqi. (2008). Document of Destiny: The Constitution of the Federation of Malaysia. Star Publications (Malaysia) Berhad.

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