ESTATE AND BENEFICIARIES
- If failed to name a nominee, the property must be
Property Disposable by Will
Introduction
• S.3 Wills Act 1959: every person of sound mind may
devise, bequeath or dispose of by his will, executed
in manner hereinafter required, all property which
he owns or to which he is entitled either at law or
in equity at the time of his death notwithstanding
that he may have become entitled to the same
subsequently to the execution of the will.
• The testator must be the owner of the property.
Without the existence of ownership rights over the
property he would not be able to will it. • Excluded:
i) Trust property
ii) Nominated property
Nominated property
• Estate where nominee have been appointed such as
Employee Provident Fund (EPF) and insurance
policy.
• The Nominee is the lawful Beneficiary who is
entitled to the whole fund/policy moneys.
• Reg 9(2)(a) EPF Regulations 2001: Where a
member dies having made a nomination, the nominee
shall receive the amount standing to the credit of such
deceased member — in the case of a non-Muslim
member, as a beneficiary.
• Schedule 10, para 4(1) Financial Services Act
2013: Where a policy owner dies having made a
nomination, the licensed insurer shall pay the policy
moneys according to the direction of the nomination
upon receipt of a claim by the nominee together with
proof of death of the policy owner.
• Schedule 10, Financial Services Act 2013 para 5
(1): A nomination by a policy owner, other than a
Muslim policy owner, shall create a trust in favour
of the nominee of the policy moneys payable upon
the death of the policy owner
• Schedule 10, Financial Services Act 2013 Para 5
(2): a payment under subparagraph (1) shall not
form part of the estate of the deceased policy
owner or be subject to his debts.
- Thus, nominated property cannot be included in the
Will or distributed according to the Will even though
mentioned in the Will.
distributed according to intestate rule.
Property under Joint Ownership/ Co
Proprietorship
- Joint ownership can be between husband & wife/with
others
- Under the “law of survivorship”, the surviving
owner/owners will inherit the property.
- Example: A & B co-owned a land. If A dies, B will
inherit the land.
- However, this rule is not applicable in Malaysia.
S.343(1) National Land Code 1965 provides:
(a) The co-proprietor’s shares shall be deemed
to be equal i.e. each co-proprietor has an equal
share to the house/land.
(c) On the death of any of the co-proprietors,
their share will be dealt with in accordance to
their will / the laws of intestacy.
- Example: A & B co-owned a land. Each of them
owned ½ of the share over the land (unless the grant
state their shares)
- If a co-owner passes away, the surviving
owner/owners will NOT inherit the property. Their
share will be dealt with in accordance to the will / the
laws of intestacy.
- Example: A & B co-owned a land. If A dies. B will
not inherit A’s ½ shares over the land. A’ share will be
distributed among the beneficiaries according to A’s
Will if he died testate or according to Distribution Act
if he died intestate.
Residuary Estate
- Residuary estate = any portion of the Testator's estate
which is left
(i) After payment of debts & expenses
(funeral, executors & legal fees) incurred in the
administration of the estate, and
(ii) After any specific gifts in the Will have
been made.
- It is possible for a residuary estate to be created
unintentionally because:
● the property failed (forgot) to be included at
the time the Testator made the will;
● the property was acquired after making the will
and the Testator failed to update the will; or
● failure of gift e.g. death of beneficiaries before
Testator/ due to unclear and ambiguous gift.
Distribution of Estate

- Once GP / LA has been granted & a notice of
intended distribution has been published, the
executor/administrator may distribute the estate
after paying the deceased's debts.
- There is currently no tax for property inheritance in
Malaysia. An inheritance tax was implemented in
Malaysia under the Estate Duty Enactment 1941.
However, this legislation was repealed in 1991.
TERMINOLOGIES COMMONLY USED IN A
WILL
● Testamentary gift/gift: property intended by
the Testator to be given to the Beneficiary
named in the Will
● Bequest - a gift by Will of personal property
(movables)
● Legacy – a bequest, often of money – the
beneficiary of a legacy is called ‘legatee’
● Device - a gift by will of real property
(immovable)
● Personal property/Personality: movable
property
● Real property/Realty: immovable property
Distribution According To Will
• The Will provides the direction on method of
disposing property.
• The direction can be in the form of specific/general
disposition.
• Specific gift will be distributed first, then general gift
and lastly the residue.
WILL DRAFTING – Example of Clauses on
specific gift
- Specific Bequests:
“I make the following special bequests: I give my car
BMW MAC123 to my wife, if she survives me;
“I give my shares in Amanah Saham Berhad to my son,
if he survives me”
- Specific Devices:
I leave my half share of the matrimonial home known
as (address) ___________________ (‘my house’) to
my mother, ___________, my daughter and my son, in
equal shares if they survives me.
If any of this persons predeceases me or dies within 30
days of my death, this device to them shall lapse and
the same shall become a part of my residuary estate, to
be distributed as hereinafter provided.
- General Bequests:
I give all my tangible personal property to my husband,
Teddy. If he does not survive me, I give that property to
those of my children who survive me, in equal shares,
to be divided among them by my executors in their
absolute discretion after consultation with my children
WILL DRAFTING – Example of Residuary Clause
- Residual Clause
“I hereby leave the residue of my estate, both personal
and real, subject to other provisions in this Will and
after payment of my debts, funeral and administrative
expenses associated with this Will to my sister
_________________, if she survives me.
If she predeceases me then the share residue that she
would have received, I give to their surviving children
if any, in equal shares.”
- A residuary clause covers the rest of the property that
is not specifically mentioned in the will. It is a catch-all
clause.
- Without such a clause, the testator risk having
property that is not covered by the will distributed by
the rules of intestacy.
WILL DRAFTING - Example of Other Clauses in a
Will
i. Special directions or last words to family members
and beneficiaries
e.g. Gifts to charities, donation of organs, direction
for burials
“I wish to be cremated and to have my ashes
scattered over the ocean.”
ii. Appointment of Guardian & Trustee I hereby
appoint my sister, ____________ as the sole Guardian
of my infant child, until he reaches 18 years of age.
If she predeceases me or is unable or unwilling to act
as such, then I appoint my mother, __________ as the
sole Guardian of my infant child until he reach 18
years of age.
Failure of Gift
A gift may fail for one of the following main reasons:
~ The beneficiary/spouse of the beneficiary is an
attesting witness
~ Uncertainty
~ The beneficiary disclaims the gift
~ Lapse
~ Ademption
~ Abatement

~ Against Public Policy
~ Failure to Fulfill a Conditional gift
- If a gift fails, the subject matter (if exist) fall into
residue (S.19 WA) and will be distributed according to
the will or intestacy rule (if no residuary clause).
- Section 19 WA: such property as is
comprised/intended to be comprised in any
devise/bequest in such will contained, which fails/is
void by reason of the death of the devisee or legatee in
the lifetime of the testator or by reason of such
devise/bequest being contrary to law or otherwise
incapable of taking effect, shall be included in the
residuary devise or bequest respectively, if any,
contained in the will
The beneficiary/spouse of the beneficiary is an
attesting witness
- S.9 WA: The witnesses must NOT be Beneficiaries to
the Will nor can their spouses, otherwise the gift is
VOID.
- If a beneficiary/their spouse is an attesting witness,
the attestation itself will be valid and this will not cause
the Will to fail; only the gift to the witness/their spouse
shall be void.
- However, there are some key exceptions to this
general rule:
i) If a beneficiary was not married to the
witness at the time the attestation took place but
married the witness afterwards
ii) If the Will is a privileged Will as a
privileged Will requires no witnesses
iii) If the gift was made/confirmed by another
Will/codicil.
(e.g. A person is a beneficiary of Will and did not
attest it but later attests a codicil to the Will, their
benefit under the Will is not affected.)
Uncertainty
- It is important to ensure that gifts are not drafted in a
vague manner, as a gift will fail for uncertainty if it is
impossible to identify either the subject matter or the
object of the gift.
- The subject matter of a gift is the gift itself whereas
the object of the gift is the beneficiary. (E.g. in a gift of
my jewellery to my daughter, the jewellery is the
subject matter and the daughter is the object.)
Peck v Holsey(1726)2 P.Wms 387 - “some of best
linen” –uncertainty as to subject matter
Asten v Asten [1894] 3 Ch 261, the testator owned 4
houses but fail to indicate in his will which house each
of his sons will take.
Re Stephenson [1897] 1 Ch 75, the testator by his will
gave his residuary estate “unto the children of the
deceased son {named Bamber} of my father’s sister;
share and share alike”. This sister, as the testator was
aware, had 3 deceased sons each with the surname
Bamber and each had left children. The court held that
the gift failed for uncertainty of object as it is
impossible to ascertain which son’s children were
intended by the testator.
The beneficiary disclaims the gift
- A beneficiary has the freedom to declaim any gift to
them by Will/Intestacy, they cannot be forced to take a
gift against their Will.
- Any person that does wish to disclaim can do so by a
Deed of Disclaimer, or alternatively it may be seen
from their conduct that they have disclaimed.
- It is possible for a beneficiary to retract a disclaimer,
however if a person has altered their position and now
relies on the disclaimer, they will not be able to retract.
- There are some limitations to the freedom to disclaim:
● If a person has clearly accepted a gift, they
cannot then disclaim.
● Where a person receives one single gift under a
Will, it is not possible to disclaim part of a gift,
the beneficiary must disclaim all of it.
● E.g. a person receiving a house and its contents
cannot accept the house but disclaim its
contents as it is one single gift, not two
separate gifts.
● Where a person receives multiple gifts under a
Will they are free to disclaim one gift and still
take the other.
● Where joint beneficiaries are receiving as joint
tenants, a single joint beneficiary cannot
disclaim, disclaimer by joint tenants can only
be made by all of them.
Lapse (the donee pre-deceases the testator)
● General rule: donee to survive testator
● Under the doctrine of lapse, a gift will fail if a
beneficiary predeceases the testator.
Re Whorwood, Ogle v Lord Sherborne (1887) 34
Ch D 446: The testator bequeathed a silver cup to
Lord Sherborne who then predeceased the testator. The
COA held that the gift is null and void.
- Hence, where there is a specific gift to a specific
person and he dies before the testator, the gift will
lapse and fall under the residue legacy of deceased as
provided under S.19 WA 1959
- The doctrine of lapse cannot be excluded by a
testator. Re Ladd [1932] 2 Ch 219 - The testator
included a statement “to the intent that this my will
shall take effect whether I survive or predecease my
husband.” The husband predeceased but it was held
that the appointment to the husband lapsed and his
personal representatives did not take as this statement
could not exclude the doctrine of lapse.
- Exception to the doctrine of lapse.
i. Substitutional gifts: a testator may direct that
if a beneficiary predeceases them their gift will pass to
their personal representatives to be held as part of their
estate, or will pass to a different beneficiary entirely.
(survivorship clause)
ii. Gift to testator’s child. ~ Where a testator
makes a gift to a child/remoter descendant and that
descendant predeceases the testator leaving issue who
are living at the testator’s death then their gift will not
lapse.
- S.25 WA: Where any person, being a child/other issue
of the testator, to whom any property shall be
devised/bequeathed for any estate or interest not
determinable at or before the death of such person shall
die in the lifetime of the testator leaving issue, and any
such issue of such person shall be living at the time of
the death of the testator, such devise or bequest shall
not lapse, but shall take effect as if the death of such
person had happened immediately after the death of the
testator
- Hence, the property will form part of the predeceased
child and can be distributed to his heirs according to
Will or intestacy rule.
- Where the circumstances of death mean that the order
of death is uncertain or simultaneous deaths, Section 2
of the Presumption of Survivorship Act 1950 (Act
205) provides that where 2 or more persons die in
circumstances rendering it uncertain which of them
survived the other, such deaths shall for all purposes
affecting the title to property be presumed to have
occurred in order of seniority. (the younger survived
the elder)
Ademption
- A specific gift will fail if the subject matter of the gift
does not form part of the estate at the time of death or
ceases to exist.
- E.g.: the property is sold / given away / destroyed.
Re Sikes (1927) 1 QB - The Testatrix made a bequest
of ‘my piano’. Subsequently she sold the piano and
bought a new one. It was held that since the bequest
was a specific bequest, my piano referred to the piano
she had previously. The gift had been adeemed.
Re Slater [1907] 1 Ch 665 - The testator bequeathed
the interest arising in money invested in the Lambert
Waterwork Co. the company was taken over by
Metropolitan Water Board.
- There are a number of common methods that are used
to avoid ademption.
- Gifts will often be worded to be less specific (e.g.
example a gift may be worded to refer to all monies
from ‘all bank and building society accounts’ at death
rather than money from a specific bank account.)
- If a gift is of money from a specific bank account and
such bank account is closed between attestation and
death, there is a risk that the gift could adeem.
However, a gift of money from all bank accounts
would only fail if there are none at all in the estate at
death.
- If the testator moves address between the attestation
and death, it could cause any gift of the previous
property to fail. To combat this the following can be
included.
- ‘or if such property does not form part of my estate
then instead such interest in the property which I
owned and last used as my principal residence before
my death’
- This allows any property used as main residence to
instead be gifted. Abatement would then only occur if
there is no property in the estate which is used as the
main residence.
- Re Bridle [1879] – Held where the nature of the
property has changed, the first consideration, in
deciding whether a gift is adeemed, must always be the
words used by the testator in describing or dealing with
the property bequeathed.A bequest of a debt is
adeemed by the whole debt being paid to the testator in
his lifetime
\Abatement
- An estate is said to be insolvent if the assets of an
estate are insufficient to pay for the funeral,
testamentary and administration expenses & debts.
- Where the estate is insolvent (the estate is insufficient
to meet its liabilities), all gifts in the Will fail, as
everything will be used to meet the estate’s liabilities.
- In the other word, the legacies been reduced or abate.
- There is a statutory order under Section 69 PAA in
which assets are used towards expenses, liabilities &
debts.
- Section 69(1) PAA: Where the estate of a deceased
person is insolvent his estate shall be administered in
accordance with the rules set out In Part I of the First
Schedule.
- The available assets can only be used to pay for
certain debt & liabilities – not all
- So have to settle funeral, testamentary, and
administration expenses first.
- If after the payment of debts, liabilities and
testamentary expenses there are not enough assets in
the estate to satisfy all legacies they must be abated.
- E.g. A supposed to received RM1,000 and B
RM10,000. Since the property is not enough, gift to B
is abated
- Section 69(3): Where the estate of a deceased person
is solvent his estate shall… be applicable towards the
discharge of the funeral, testamentary and
administration expenses, debts and liabilities payable
thereout in the order mentioned in Part II of the First
Schedule.
- Since the property is sufficient to pay debt and
liabilities, must use the property to settle the debt &
liabilities according to the order in Part II.
- If residue has been used to settle the debt, the residue
is therefore abated.
Order Of Application Of Assets Where The Estate
Is Solvent
1) Property of the deceased undisposed of by will,
subject to the retention thereout of a fund sufficient to
meet any pecuniary legacies. (the residue – intestate
because no residuary clause)
2) Property of the deceased not specifically
devised/bequeathed but included (either by a specific/
general description) in a residuary gift, subject to the
retention out of the property of a fund sufficient to
meet any pecuniary legacies, so far as not provided for
as aforesaid.
3) Property of the deceased specifically appropriated or
devised/bequeathed (either by specific/general
description) for the payment of debts.
4) Property of the deceased charged with, or
devised/bequeathed (either by a specific/general
description) subject to a charge for the payment of
debts.
5) The fund, if any, retained to meet pecuniary
legacies.
6) Property specifically devised/bequeathed, rateably
according to value.
7) Property appointed by will under a general power,
rateably according to value.
8) The following provisions shall also apply:
● the order of application may be varied by the
will of the deceased;
● this part of this Schedule does not affect the
liability of land to answer the death duty
imposed thereon in exoneration of other assets.
7) Against Public policy
Gifts may fail if such gift or its condition is against a
rule of public policy.
- A common example of this is if a gift has a condition
which is seen as encouraging the break-up of a
marriage, such gift would fail.
- A gift which is induced by force, fear or other type of
undue influence will fail.
- A gift to a murderer is also void.
Re Giles [1971] 3 All ER 1141 - A woman killed her
husband and found guilty of manslaughter. She sought
her benefit from her husband’s estate. It was held that
the benefit was forfeited from her.
8) Noncompliance with condition
- A gift may be made as a conditional gift / subject to
restriction. e.g. A devised his interest in the farm to his
wife and two sons (John and Philip) in equal
proportions, but the gift to his sons was made subject to
the condition that within the period of nine months
from the testator’s death, John and Philip each had to
pay RM15,000 to Beryl and Basil.
- The condition attached must not conflict with certain
recognized restrictions and should be consistent with
other provisions of the will.
- Courts will use public policy grounds to invalidate
provisions that encourage immoral or harmful acts, or
acts that can hurt society in general
DISTRIBUTION ACCORDING TO LAW OF
INTESTACY
- The Distribution Act 1958 governs the distribution of
estates of a person who dies intestate (total/partial).
- Total Intestacy occurs when a person has died without
leaving a Will.
● A total intestacy may arise for a variety of
reasons, e.g.: the deceased did not make a Will;
● the deceased's Will may have been revoked;
● the Will may be invalid
- Partial Intestacy arises when a person has made a Will
that does not dispose of his entire estate. e.g. the Will
did not include a gift of residue.
- Section 2 define “intestate” to include any person
who leaves a will but dies intestate as to some
beneficial interest in his property.
- Section 8: Where any person dies leaving a will
beneficially disposing of part of his property, the
provisions of this Act shall have effect as respects the
part of his property not so disposed of. The personal
representative shall be a trustee for the persons entitled
under this Act in respect of the part of the estate not
expressly disposed of.
- It has to be noted that this Act applies only to
non-Muslims in the Peninsular Malaysia and the
Sarawak jurisdictions.
- Section 4(1): The distribution of the movable
property of a person deceased shall be regulated by the
law of the country in which he was domiciled at the
time of his death.
- Thus, the Distribution Act only applies if the
deceased domicile in Malaysia.
- Section 4(2): The distribution of the immovable
property of a person deceased intestate shall be
regulated by this Act (i.e. Distribution Act) wherever
he may have been domiciled at the time of his death.
Rules of Distribution
- The Distribution Act laid down the statutory rules of
intestate succession and provide directions as to how
intestate estate should be distributed.
 (i) In case of total intestacy, the distribution
will take place once payment of the expenses of due
administration, debts as well as other liabilities has
been made. The remainder will be distributed
according to the order of priority under s.6.
- Section 6(1): such property/the proceeds thereof after
payment thereout of the expenses of due administration
shall…be distributed…in the manner…mentioned in
this section…
(ii) In case of partial intestacy, the distribution
will take place after satisfying the disposition made
under the Will. Property undisposed of by the Will
shall be distributed according to s.6.
- Section 6 governs the order & priority in which the
estate is to be distributed to the legal beneficiaries of
the deceased depending on who survives the deceased.
- Generally, the estate will be distributed among the
deceased’s immediate family: his parents, spouse, and
issue.
- The law seems to be in favor of the issue in situations
where the deceased is survived by variables of the
spouse, issue and parent.
(Refer Section 6 Distribution Act)
BENEFICIARIES
Who Can Be Beneficiaries? (can benefit from the
will)
i) Minor - the property will be put under the hand of a
trustee 1st until attain the age of majority. The Will
must appoint 2 Executors to act as Trustees for the
minor beneficiary.
ii) Mental patient: Court will appoint someone to
administer the property during his disabilities period
iii) Bankrupt: the property will be held by DGI for the
benefit of creditors
iv) Executor & Trustee: S.23
Who Cannot Benefit?
i) Witness to Will - Section 9: Gift to attesting witness
is void
ii) Murderer
In Re Sigsworth: Bedford v Bedford [1935] 1 Ch 89
- A son murdered his mother. She had not made a will.
Under the statute setting the law on intestacy he was
her sole issue and stood to inherit her entire estate. The
court applied the Golden rule holding that an
application of the literal rule would lead to a repugnant
result. He was thus entitled to nothing.
The Estate of Hall v Knight and Baxter [1914] P.1 –
Held the forfeiture rule applied to a person convicted of
manslaughter. Hamilton LJ said: "The principle can
only be expressed in that wide form. It is that a man
shall not slay his benefactor and thereby take his
bounty; and I cannot understand why a distinction
should be drawn between the rule of public policy
where the criminality consists in murder and the rule
where the criminality consists in manslaughter".
iii) Predeceased Beneficiaries (died before the Testator)
- The gift become part of the residue
CONDITIONS TO INHERIT
- For a person to inherit on intestacy, he must have
survived the deceased.
- It is common to see survivorship clauses in Wills
which states:
● a beneficiary must survive for a given period
of time for the gift to take effect (survivorship
period); and
● If the beneficiary dies within the prescribed
survivorship period, the gift fails and is
distributed to the testator’s other beneficiaries
pursuant to the terms of the Will.
Example: “If A dies within 30 days of death, he is not
entitled to the assets.”
The reason is:
● to avoid assets going through probate more
than once in a short period of time and
● to exert a level of control over the assets so
that, if the intended beneficiary dies shortly
after the testator, the assets do not pass in
accordance with the beneficiary’s own Will or
intestacy
In case of simultaneous death, Section2 of the
Presumption of Survivorship Act 1950 (Act 205)
provides that
● where 2 /more persons die in
circumstances rendering it uncertain which
of them survived the other,
● such deaths shall for all purposes affecting
the title to property
● be presumed to have occurred in order of
seniority and
● accordingly the younger shall be deemed
to have survived the elder.
 - The presumption however does not apply
between husband & wife on intestacy of one/both
them as provided under Section.6(3) Distribution
Act.
- Section 6(3) Distribution Act: When the
intestate and the intestate’s husband or wife have
died in circumstances rendering it uncertain which
of them survived the other, this section shall,
notwithstanding any rule of law to the contrary,
have effect as regards the intestate as if the
husband or wife had not survived the intestate.
- Hence, if the husband and wife died
simultaneously in an accident, and it cannot be
determined who died first,
● if the husband died intestate, the wife is
deemed not survived the husband; and
● therefore cannot not inherit the husband’s
estate even though she is younger than the
husband (the presumption of survivorship
not apply).
GROUNDS OF INHERITANCE
Before a legal heir of a deceased person inherit, he
must have either one of the following grounds:
1) Blood Relationship
- The following persons are eligible for a share in the
property of the deceased on the ground that he/she is
related to the deceased by blood.
● Issue
● Parent
● Brothers and Sisters
● Grand Parent
● Great Grand Parent
● Uncles & Aunts
● Great Grand Uncles & Aunts
- S.3 defines “issue” to include children and the
descendants of deceased children;
- Hence, a person’s issue includes his children and the
descendants of his children
- Section 3 defines “child” as a legitimate child. Thus,
for a child to inherit, he/she must be the legitimate
child of the deceased regardless the marriage is still
subsisting or not.
- A “legitimate child” is a child born in wedlock or
having been legitimized pursuant to the provisions of
the Legitimacy Act, 1961.
- A child deemed to be “illegitimate” is NOT entitled
to inherit from his/her deceased father’s estate should
he die without leaving a Will.
Shanmugam S.Kanapathy v Pappah Chinniah
Nadar [1994] 2 CLJ 265 - Illegitimate child has no
right to inherit the property of his/her biological father
on intestacy, and vice versa.
Tan Ying v Tan Kah Fatt [2018] 1 LNS 1084 - Legal
suits were filed by the lawful wife of the deceased to
seek, amongst others, a declaration that the child
fathered by the deceased with another woman is an
illegitimate child and hence, will not have the right to
claim an interest in the deceased’s estate. Court granted
the declaration
Exception
S.11(1) Legitimacy Act 1961 - an illegitimate child/his
issue is entitled to inherit the property of his/her
biological mother on intestacy provided she does not
leave any legitimate issue surviving her.
S.11(2) Legitimacy Act 1961 - a surviving mother is
entitled to inherit the property of her illegitimate child
who dies intestate provided she is the only surviving
parent.
S.6 Legitimacy Act 1961 - a legitimated person, his
spouse, children or more remoter issue is entitled to
inherit in the estate of an intestate in like manner as if
the legitimated person had been born legitimate
S.7 Legitimacy Act 1961 – if a legitimated person dies
intestate, his child or remoter issue is entitled to inherit
his estate.
- A legitimated person is a person who has been
legitimized under Legitimacy Act 1961.
- One method to legitimize a person as provided under
Section 4 of the Act is through the subsequent
marriage of the illegitimate person’s parents and the
father was or is at the date of the marriage domiciled in
Malaysia.
- Thus, a child born out of wedlock can be legitimized
through the subsequent marriage of his/her parents.
Section 75(2) Law Reform (Marriage and Divorce)
Act 1976 - the child of a void marriage shall be treated
as the legitimate child of his parent if,
● at the time of the solemnization of the
marriage, both or either of the parties
reasonably believed that the marriage was
valid; and
● the father of the child was domiciled in
Malaysia at the time of the marriage.
- The legitimate child may therefore inherit his parent’s
estate on intestacy.
Section 5 provides that for the purpose of distribution
under the Act, there shall be no distinction (i.e. they
will have equal right in the deceased’s estate) between
those who are related to the deceased person
- whether through his father/mother
(If a person died leaving uncles/grand parents from his
father’s side and mother’s side at the same time, the
estate of the deceased will be shared equally among
them)
- whether related to him by the full blood/half blood
(If a person died leaving 3 brothers, 1 who shares the
same parent, 1 who shares the same father and 1 who
shares the same mother, all these brothers will have
equal right in the estate of the deceased)
- Between those who were actually born in his lifetime
and those who at the date of his death were only
conceived in the womb but who have subsequently
been born alive.
(Thus, an issue will have succession rights from
conception, but he/she must be born alive
subsequently)
Adoption
- S.3 provides that “child” does not include an adopted
child other than a child adopted under the provisions of
the Adoption Act 1952 and “parent” means the lawful
mother/father of a child under the Adoption Act 1952.
- Hence, only a lawfully adopted child may inherit
his/her adoptive parent’s estate on intestacy and vice
versa.
Yeap Chan Aik v Yeap Chan Hoe [2000]1 MLJ 78 –
Court held the Distribution Act 1958 only
acknowledges an adoption of a child pursuant to the
Adoption Act 1952 as a ‘child’ for the purpose of
receiving estate. Even though the defendants had
earlier filed the affidavit in the proceedings that the
plaintiff was the deceased's son, their conduct cannot
go beyond the provisions of the law, especially s 3 of
the Distribution Act 1958
Marriage
- A spouse (husband/wife) may inherit the other
spouse’s estate on intestacy.
i) The marriage must be valid.
- A marriage is valid if both parties fulfill all the
substantive requirements under their respective law of
domicile and the procedural requirements under the
law of the country in which the marriage is solemnised.
- In Malaysia, the law would be the Law Reform
Marriage and Divorce) Act 1976
S.6(2) Law Reform (Marriage and Divorce) Act
1976: If any male person lawfully married under any
law, religion, custom/usage shall during the
continuance of such marriage contract another union
(second marriage) with any woman, such woman shall
have no right of succession or inheritance on the death
intestate of such male person.
ii) The marriage must be subsisting up to the time of
death of the intestate.
- Thus, a divorcee is not entitled to inherit his/her
ex-spouse on intestacy.
- If spouses live separately before the marriage is
dissolved, they are entitled to inherit. Similarly, if one
of them dies before decree absolute is granted, the
surviving party will be entitled to inherit the estate on
intestacy.
Statutory Trust
S.6(1)(h): The estate of an intestate who leaves issue
shall be held on the trusts set out in s.7 for the issue
S.6(1)(i): If an intestate dies leaving no spouse, issue,
parent the whole of the estate of the intestate shall be
held on trusts for the following persons living at the
death of the intestate and in the following order and
manner, namely
● his brothers & sisters
● his grandparents
● his uncles & aunts
● his great grandparents
● his great granduncle & grandaunts
●
S.7(1): The estate of an intestate shall be held in trust
(in equal shares if more than one)
i) for all/any of the children/child of the intestate
● living at the death of the intestate,
● who attain the age of majority/marry under that
age, and
ii) for all/any of the issue of any child of the intestate
who predeceases the intestate, (grandson)
● living at the death of the intestate,
● who attain the age of majority/marry under that
age,
● such issue to take through all degrees
according to their stocks (i.e. in equal shares if
more than one) the share which their parent
would have taken if living at the death of the
intestate, and so that no issue shall take whose
parent is still living at the death of the intestate
and so capable of taking.
- As a result, if a child predeceased the intestate, their
issue will stand as beneficiaries instead, as provided in
S.7(2) (read with s.7(1)).
S.7(2): Where under s.6 the estate of an intestate/any
part thereof is directed to be held on the trusts set out in
this section for any class of relatives of the deceased
other than issue of the intestate, the same shall be held
on trusts corresponding to the trusts set out in
subsection (1) of this section for the issue of the
intestate as if such trusts were repeated with the
substitution of references to the members or member of
that class for references to the children or child of the
intestate.
S.7(1): the property shall be held in trust (in equal
shares if more than one)
● for all/any of (e.g. the brother & sister) of the
intestate living at the death of the intestate, and
● for all/any of the issue of any (brother & sister)
of the intestate who predeceases the intestate,
living at the death of the intestate, who attain
the age of majority/marry under that age,
● such issue to take through all degrees
according to their stocks (in equal shares if
more than one) the share which their parent
would have taken if living at the death of the
intestate...
- However, COA in Gan Cheng Khuan v Gan Kah
Yang [2018] MLJU 1363, decided that if brothers and
sisters of the intestate predeceased the intestate, their
child/children cannot be benefitted under the intestacy.
- Only when a person dies leaving no parents, spouse,
issue, and any of the above family members, the
Government shall be entitled to the whole estate. Such
instance is indeed very rare.