Case Update: Illegitimate Child Entitled To Inheritance From Parent Who Died Intestate

Published date03 February 2023
Subject MatterFamily and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
Law FirmZul Rafique & Partners
AuthorZul Rafique & Partners

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...

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