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Can an illegitimate child inherit his/her parent’s estate?

Who is an Illegitimate Child?

An illegitimate child is a child born out of wedlock or born at a time when his/her parents are not married and were not legitimized pursuant to Section 3(1) of the Legitimacy Act 1961:

“Nothing in this Act shall operate to legitimate a person unless the marriage leading to the legitimation was solemnized and registered in accordance with:
(a) the Civil Marriage Ordinance 1952 [Ord. No. 44 of 1952 ]*, or the Christian Marriage Ordinance 1956 [Ord. No. 33 of 1956]*;
(b) the Christian Marriage Ordinance [Cap. 24]* or the Marriage Ordinance 1959 [Ord. No. 14 of 1959]*, of Sabah; or
(c) the Church and Civil Marriage Ordinance [Cap. 92]* of Sarawak,
or any Enactment or Ordinance repealed by any of the said Ordinances.”

An illegitimate child can be legitimized by subsequent marriage of the parents (See Section 4 of the Legitimacy Act 1961 and Chan Tai Ern Bermillo & Anor v Ketua Pengarah Pendaftaran Negara & Ors [2019] 7 MLJ 113).

Rights of an Illegitimate Child

In Malaysia, an illegitimate child has limited rights of inheritance to his/her parent’s estate.

Pursuant to Section 3 of the Distribution Act 1958, child means ”a legitimate child where the deceased is permitted by his personal law a plurality of wives includes a child by any of such wives, but does not include an adopted child other than a child adopted under the provisions of Adoption Act 1952 [Act 257].“ 

In other words, an illegitimate child is not entitled to succeed or inherit his/her father’s estate if the father dies intestate (without a will).

As such, if you have a child out of wedlock and wish to leave any property or asset right after your death, you shall write a Last Will and Testament naming the illegitimate child as the beneficiary in the Will. It must be noted that the name and birth certificate number/mykid card number/identity card number of the child must be written in the Will as beneficiary instead of using the general words like “child/children” (Maxwell John Gray (as administrator/trustee for the estate of Cory John Gray, deceased) v Lim Siew Shun [2019] 8 MLJ 119).

Nonetheless, an illegitimate child is entitled to inherit from his/her mother’s estate if the mother dies intestate (without a will) provided that she does not have any legitimate child pursuant to Section 11(1) Legitimacy Act 1961:

11. Right of illegitimate child and mother of illegitimate child to succeed on intestacy of the other
(1) Where, on or after the prescribed date, the mother of an illegitimate child, the child not being a legitimated person, dies intestate as respects all or any of her property, and does not leave any legitimate issue surviving her, the illegitimate child, or if he is dead his issue, shall be entitled to take any interest therein to which he or his issue would have been entitled if he had been born legitimate.”

Alternatively, the parents may create a trust arrangement by way of Deed of Trust to the illegitimate child to manage and distribute their property/assets.

The Malaysian law does not protect the rights of an illegitimate child but writing a will or creating a trust arrangement to distribute your property accordingly saves complications arising from like cases.

The contents of this article do not constitute legal or other professional advice or an opinion of any kind. It is provided for general information purposes only. Please contact us for further enquiry.