Applicable to non-Muslims.
Nowadays, it is quite a common scene to see in television dramas and movies that during a funeral of a deceased husband, the family would be shocked to learn that the deceased has another child with another woman. In the end, a tug-of-war occurs and the legal family is now in a face-off with the newly discovered child on matters of inheritance.
This is where the important question pops up – Does an illegitimate child has a right to inheritance?
In this article, illegitimate children refer to children born out of wedlock and who are not subsequently legitimized under the provisions of the Legitimacy Act 1961. Legitimacy Act 1961 applies when for example, by virtue of the subsequent marriage of the parents, the child becomes legitimate.
However, the issue here is when a child is deemed “illegitimate” for the purposes of inheriting from an estate where a parent dies without leaving a Will.
Special circumstances where an illegitimate child can inherit from his/her parents.
Special circumstances allow for the illegitimate child to inherit. However, there will be several things which the child needs to prove in order to do so. Referring to Section 11 of the Legitimacy Act 1961, it states as below:
“…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.”
1. Deceased mother
Explaining the above provision, in short, the illegitimate child is entitled to inherit from his/her mother’s estate IF she dies without leaving a Will AND does not have any legitimate children i.e. half-siblings considered legitimate under the law. However, it can be said that the illegitimate child can lose his/her rights of inheritance in the event the mother dies without leaving a Will but leaves legitimate children, presumably from an earlier or later marriage.
2. Deceased father
However, inheritance applies differently in cases of a deceased father. In a situation of inheriting his/her father’s inheritance, an illegitimate child is NOT entitled to inherit from his/her deceased father’s estate should he die without leaving a Will. The only way for an inheritance to be distributed to the illegitimate child is through a well-drafted Will.
A poorly drafted Will can cause serious implications. An example is:
“I give all my personal chattels including motor vehicles equally for my children who survive me.”
Such wordings can be argued to include which children from which marriage, illegitimate or otherwise. It is important to note that drafting Will should be precise in order to avoid disputes especially one that involves complex family ties and estates.
Realistically, local laws are strict on the rights of illegitimate children in Malaysia. What is most important is to make sure parents prepare a Will beforehand to distribute the property accordingly in such a way that it will ensure all your children (legitimate and illegitimate) have a fair share in receiving your inheritance as per your intentions.
Since the situation can be quite tricky, it’s definitely best to first consult a professional who is well-versed in the matter of will preparation or a company offering such services as this is to ensure that your Will is in compliance with all the necessary statutory requirements.