Tan Kah Fatt & Anor v Tan Ying

1.0 Introduction

This landmark decision of the Federal Court of Malaysia, delivered on 18 January 2023,¹ reshaped the law by protecting the inheritance rights of illegitimate children under Section 6 of the Distribution Act 1958 (“DA”), which governs non-Muslim intestate succession in Malaysia. The matter concerned Tan Kah Yong (“the deceased”), who died intestate and left behind Tan Sin Yee (“A2”), a daughter born of a Chinese customary marriage that was never registered under the Law Reform (Marriage and Divorce) Act 1976 (“LRMDA”). The Federal Court invoked Lord Denning’s dissent in Sydall v Castings Ltd to reject the harsh and outdated rules that once treated illegitimate children as legal outcasts.²

The decision gave effect to the purpose of the DA, which is to distribute an intestate estate among the deceased’s descendants. It did so by distinguishing the word “issue” in Section 6 from the narrower term “child” in Section 3 of the same Act, a distinction that the earlier authorities had not drawn, rather than treating the two words as interchangeable.

2.0 Facts of the Case

The deceased died in a motor vehicle accident on 7 October 2012 without leaving a will. He was survived by his parents; his younger brother, Tan Kah Fatt (“A1”); his wife, Tan Ying (“the respondent”); and two daughters from two different relationships. A2, the elder daughter, was born on 8 October 2002 to Lu YanLiu, a Chinese national with whom the deceased had undergone a traditional Chinese customary marriage that was never registered under the LRMDA. A2’s birth was registered as that of an illegitimate child under Section 13 of the Births and Deaths Registration Act 1957. The younger daughter, by contrast, was born on 2 January 2009 to the respondent, whom the deceased had married on 18 January 2005 in a marriage registered under the LRMDA.

In 2013, A1 and the respondent were appointed joint administrators of the estate, with both daughters, the respondent, and the deceased’s parents identified as beneficiaries. The respondent later applied to remove A1 as co-administrator on the grounds that A1 had misrepresented A2’s entitlement to her and that there was a conflict of interest, as A1 was a director of two companies suing the estate. She contended that A2, being an illegitimate child, had no right to inherit and must return the monies already distributed to her. A1 and A2 counterclaimed for A2’s upbringing expenses and a 25% share of the estate under an alleged trust.

The High Court (“HC”) ruled in favour of the respondent. Its judgment rested on the finding that the customary marriage of A2’s parents was invalid for want of registration, even though registration had been mandatory since 1 March 1982, which rendered A2 illegitimate and therefore ineligible to inherit under the DA. The HC also ordered A1’s removal as co-administrator under Section 34 of the Probate and Administration Act 1959 (“PAA”) and directed, among other things, the sale of the family home. The Court of Appeal (“COA”) affirmed both findings. The appellants then appealed to the Federal Court (“FC”) with leave.

3.0 Legal Issues and Arguments

Legal Issues

The FC considered five questions:

1. whether “child” in Section 3 of the DA includes or excludes a child born of a Chinese customary marriage;
2. whether, read with Section 75(2) of the LRMDA, such a child is legitimate for succession purposes;
3. whether “child” and “issue” in the DA should, in light of Article 8 of the Federal Constitution, be interpreted non-discriminatorily to include all natural-born children of the deceased;
4. whether a co-administrator appointed by letters of administration may be removed on grounds other than those under Section 34 of the PAA, which concerns revocation or removal in the beneficiaries’ interests; and
5. whether “child” in Section 6(1)(g) of the DA applies to all natural-born children for succession purposes.

The key legal issue in this appeal was whether a child born to parents who underwent a Chinese customary marriage that was not registered under the LRMDA could inherit from her late father’s estate under the DA.

Appellants’ Argument

The appellants argued that A2 qualified as a “child” under Section 3 of the DA, which they read as carrying two limbs: a legitimate child, or a child by any wife where the deceased’s personal law permits a plurality of wives. They also relied on Section 75(2) of the LRMDA, which provides an exception whereby a child of a void marriage is legitimate if either or both parties reasonably believed the marriage was valid. As held in Cheang Thye Pin v Tan Ah Loy³ and Khoo Hooi Leong v Khoo Hean Kwee,⁴ a valid Chinese customary marriage does not require a particular ceremonial form. In this case, such a belief was evidenced by the couple’s years of cohabitation, their registration as A2’s parents, and the grandparents’ acceptance of A2 into the family. The appellants added that, because this point had not been raised in the courts below, the HC’s finding of illegitimacy was made per incuriam. They further argued that excluding A2 from inheriting on the ground of illegitimacy would offend the equality guarantee under Article 8 of the Federal Constitution.

On the administrator issue, the appellants contended that Section 34 of the PAA required the court to weigh the welfare of all beneficiaries before removing A1, and not merely the complainant’s allegations, since removal might leave the respondent, whose interests were adverse to A2’s, in effective control.

Respondent’s Argument

The respondent argued that “child” in Section 3 of the DA clearly meant only a legitimate child. A2’s right to inherit from the deceased was therefore excluded, since she was not born during a valid marriage. The respondent maintained that the existence of the marriage had not even been established at trial. Registration under the LRMDA, she argued, was a blanket requirement regardless of custom, and A2 remained unquestionably illegitimate because the customary marriage was never registered. She further pointed to the 1997 Hansard debates as evidence that Parliament had deliberately declined to extend inheritance rights to illegitimate children, and to Section 11(1) of the Legitimacy Act 1961, which allows an illegitimate child to inherit on intestacy only from his or her mother, as confirming Parliament’s intent to exclude such children from the DA. Any distinction between legitimate and illegitimate children, she said, had a rational nexus to the objective of regulating intestate distribution and did not offend Article 8 of the Federal Constitution. Any change to that policy was a matter for the legislature, not the courts.

On the administrator issue, she claimed that the HC had properly exercised its discretion in finding sufficient cause for A1’s removal.

4.0 Court’s Decision and Reasoning

The FC unanimously allowed the appeal and set aside the decisions of the HC and COA. It held that A2 was entitled to inherit under Section 6 of the DA as “issue” of the deceased, and that she was in any event legitimate under Section 75(2) of the LRMDA. The order removing A1 as co-administrator was also set aside for want of sufficient cause. The dismissal of the appellants’ trust-based counterclaim, however, was not disturbed, because leave to appeal had not been granted on that point.

The Court allowed the appeal for the following reasons.

Purpose of the Distribution Act 1958

Unless there is an indication to the contrary, the long title of the DA shows that it deals with the law of intestate estate distribution rather than with the validity of a marriage or the legitimacy of a child. Neither of the DA’s two amendments, in 1975 and 1997, touched on legitimacy, because that was never its purpose. The FC applied the purposive approach mandated by Section 17A of the Interpretation Acts 1948 and 1967, which, as affirmed in Bursa Malaysia Securities Bhd v Mohd Afrizan bin Husain,⁵ requires the purpose of an Act to guide the construction of every provision, without first requiring ambiguity.

The Distribution Act 1958 Adopts the Principle of Parity

Section 5 of the DA draws no distinction between paternal and maternal relations, full and half blood, or children born before or after the deceased’s death. This core principle acknowledges that anyone may be a potential beneficiary as long as a lineal blood relationship with the deceased can be proved.

“Issue” Is Not Equivalent to “Child”

Central to the appeal was Section 6 of the DA, which sets out the order of succession using the word “issue” throughout, with the term “child” appearing nowhere in it. Section 3 of the DA defines “child” using the word “means” a legitimate child or, where personal law permits, a child by any of several wives. That is the language of exhaustive definition. By contrast, “issue” is defined using the word “includes” children and descendants of deceased children, which makes it illustrative, expansive, and much broader.

Mary Lim FCJ held that the courts below erred in treating “issue” as bearing the same meaning as “child”, particularly since “child” is used elsewhere in the DA but was deliberately not used in Section 6. Essentially, there is nothing in the DA, either expressly or impliedly, requiring the two terms to be equated.

The Legal Meaning of “Issue”

After surveying dictionaries such as the Oxford English Dictionary and Black’s Law Dictionary, the FC found that “issue” has a consistent legal meaning: the descendants by blood lineage. Interpreted in the DA, “issue” is therefore independent of legitimacy and distinguishable from its narrower popular sense of “child”. Harrison v Harrison confirmed that, while “child” prima facie means a legitimate child in a statute, a wider meaning applies where that better serves the statute’s object.⁶ Since the DA’s intention is distribution according to blood connection rather than adjudication of legitimacy, a wider meaning applies to “issue” in Section 6 of the DA. A2’s birth certificate established her lineage; she therefore fell within “issue” and was eligible to succeed under Section 6 of the DA, irrespective of legitimacy.

The Customary Marriage

The FC went on to examine the deceased’s customary marriage with Lu YanLiu, which it found proven by a wedding dinner, three years of cohabitation, and the family’s acceptance of A2 as a grandchild. Although no particular ceremonial form is required for a valid Chinese customary marriage, the Court distinguished solemnisation, the formal process under Part III of the LRMDA. Because there was no proof that the marriage had been solemnised, it was declared void. The FC noted, in passing, that proper solemnisation might in fact have jeopardised the deceased’s later marriage to the respondent.

As for Section 75(2) of the LRMDA, the evidence supported such a belief for the reasons stated above, and A2 was accordingly legitimate on this basis. Even though the point had not been argued below, the Court considered itself bound to address it “in the name of and for the sake of doing justice.”

Removal of the Co-Administrator

The Court applied Letterstedt v Broers in determining whether A1 should be removed as co-administrator of the deceased’s estate.⁷ The touchstone under Section 34 of the PAA is the interests and benefits of the beneficiaries and the estate as a whole, and sufficient cause to remove A1 must be shown. The FC found it plainly erroneous for the HC to remove A1 on the respondent’s allegations alone, without weighing them against the interests of the other beneficiaries, an omission exacerbated by the subsequent sale of the family home.

5.0 Critical Analysis and Conclusion

In a single word, “issue”, the legislature carried the weight of a family’s heritage. This ruling ends the long-standing position that prevented illegitimate children from inheriting on intestacy among non-Muslims.⁸ The FC’s methodology is not merely policy-driven but textually disciplined. It demonstrates unequivocally that the true intent of the DA, and the fairness the case demanded, could not be undermined by the cold language of the law or by the precedent built upon it.

There are, nevertheless, some unresolved concerns. First, the respondent’s reliance on the 1997 Hansard debates raises the question whether a broad interpretation of “issue” is consistent with that legislative history, for example, if Parliament considered the inheritance rights of illegitimate children but made no express amendment. Second, by requiring administrators to verify claims of “issue” based on blood lineage, and possibly to weigh contested proof of reasonable belief, in place of the clear-cut “legitimate child” standard previously applied, the judgment increases their practical burden. Third, future litigation may need to reconcile the two definitions outside Section 6 of the DA, because the more restrictive definition of “child” still applies to other sections of the Act.

These concerns are not merely hypothetical. In the recent case of Lim Poh Chuan v Lim Poh Leong,⁹ the plaintiff was denied inheritance because he was unable to prove that he was the deceased’s biological son born of an alleged customary marriage. The two cases are distinguishable. In Lim Poh Chuan, the alleged customary marriage, said to consist of a simple tea ceremony and cohabitation, was uncorroborated,¹⁰ which negated any reasonable belief in the validity of the marriage between the plaintiff’s mother and the deceased, unlike in Tan Kah Fatt. Additionally, the plaintiff’s paternity was questioned. For instance, the validity of the birth certificate was contested, the court refused to order DNA testing between adults, and a single photograph and an old letter dated 1986 were deemed insufficient to prove the relationship. Clearly, once lineage is proven, the broader definition of “issue” ensures inheritance, but it does not lessen the difficulty of proving that lineage.

In Tan Kah Fatt & Anor v Tan Ying, the FC has now laid down the principle that illegitimacy does not prevent a deceased person’s “issue” from inheriting under Section 6 of the DA. Its ruling on Section 75(2) of the LRMDA offers a second, independent safeguard for offspring of customary unions, and its interpretation of that provision gives renewed meaning to a section that the lower courts had effectively rendered redundant.

Note(S):

¹ Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLJ 583.

² Sydall v Castings Ltd [1966] 3 All ER 770.

³ Cheang Thye Pin v Tan Ah Loy [1920] AC 369.

⁴ Khoo Hooi Leong v Khoo Hean Kwee [1926] AC 529.

⁵ Bursa Malaysia Securities Bhd v Mohd Afrizan bin Husain [2022] 4 CLJ 657.

⁶ Harrison v Harrison [1951] 2 All ER 346.

⁷ Letterstedt v Broers (1884) 9 App Cas 371.

⁸ Shamugam v Pappah [1994] 1 MLJ 144.

⁹ Lim Poh Chuan v Lim Poh Leong [2025] MLJU 400.

¹⁰ Ibid.

6.0 Reference(S):

Cases

• Bursa Malaysia Securities Bhd v Mohd Afrizan bin Husain [2022] 4 CLJ 657.
• Cheang Thye Pin v Tan Ah Loy [1920] AC 369.
• Harrison v Harrison [1951] 2 All ER 346.
• Khoo Hooi Leong v Khoo Hean Kwee [1926] AC 529.
• Letterstedt v Broers (1884) 9 App Cas 371.
• Lim Poh Chuan v Lim Poh Leong [2025] MLJU 400.
• Shamugam v Pappah [1994] 1 MLJ 144.
• Sydall v Castings Ltd [1966] 3 All ER 770.
• Tan Kah Fatt & Anor v Tan Ying [2023] 2 MLJ 583.

Legislation

• Births and Deaths Registration Act 1957, s. 13.
• Distribution Act 1958, ss. 3, 5 and 6.
• Federal Constitution, Art. 8.
• Interpretation Acts 1948 and 1967, s. 17A.
• Law Reform (Marriage and Divorce) Act 1976, Part III and s. 75(2).
• Legitimacy Act 1961, s. 11(1).
• Probate and Administration Act 1959, s. 34.