The Federal Court in Tan Kah Fatt and another v Tan Ying [2023] 1 LNS 63, reversing the decisions of both the High Court and Court of Appeal, held unanimously on 18 January 2023 that an illegitimate issue of a deceased parent is entitled to inherit from the deceased parent’s estate under sections 3 and 6 of the Distribution Act 1958 (“DA 1958”). It further held that, accepting the testimonies of the illegitimate issue’s mother and paternal grandparents that the mother had a reasonable belief (at the time of the solemnisation of the marriage) that the marriage was valid, the issue was actually a legitimate child who was entitled to inherit under her deceased father’s estate.
 
It is important to note that the DA 1958 is applicable in Peninsular Malaysia and, to a restricted extent, Sarawak. It is not applicable to (a) estates in Sabah; (b) the estate of any person professing the Muslim religion, whether in Peninsular Malaysia, Sabah or Sarawak; (c) in Sarawak, to the estate of any natives of Sarawak; and (d) to any estate where the distribution is governed by the Parsee Intestate Succession Ordinance of the Straits Settlement.
 
BACKGROUND FACTS
 
The second appellant (“Child”) was born in 2002, the daughter of Tan Kah Yong (“TKY”) and Lu YanLiu (“LYL”). TKY and LYL had undergone a Chinese customary marriage that was not registered under the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”). TKY subsequently married the respondent, Tan Yong (“TY”). From the marriage of TKY and TY, registered under the LRA 1976 in 2005, a daughter was born in 2009. Both TY and LYL were foreigners, being China nationals although LYL has since remarried and is now a permanent resident of Malaysia.
 
TKY passed away in 2012 due to a motor-vehicle accident. He died intestate. In 2013, the deceased’s brother, Tan Kah Fatt, the first appellant (“TKF”), and TY applied for and were granted letters of administration to manage the estate of TKY. The beneficiaries identified were TKY’s two daughters (including the Child), TY and TKY’s parents.
 
After the distribution of the assets of TKY’s estate, TY commenced legal proceedings seeking, amongst others, a declaration from the High Court that the Child, as the illegitimate child of TKY, did not have a legal right to claim an interest in TKY’s estate and was obliged to return monies already received.
 
WHAT THE HIGH COURT AND COURT OF APPEAL DECIDED
 
The High Court decided that the Child was illegitimate because her parents’ Chinese customary marriage was not a valid marriage under the LRA 1976 and, as such, was not entitled to inherit under the DA 1958.
 
The Court of Appeal upheld the decision of the High Court, agreeing that, as an illegitimate child, the Child was not entitled to inherit under the deceased’s estate under sections 3 and 6 of the DA 1958.
 
THE LEAVE QUESTIONS
 
TKF and the Child sought and obtained leave to appeal to the Federal Court on the following four questions of law (collectively, the “Leave Questions”): The Leave Questions sought to establish that the Child is not an illegitimate child and is entitled to inherit under the DA 1958. A fifth question relating to the removal of TKF as a co-administrator was allowed by the Federal Court but is not relevant to our commentary.
 
DECISION OF THE FEDERAL COURT
 
The Federal Court, comprising Mary Lim Thiam Suan, FCJ who authored the judgment, the Chief Judge of Sabah and Sarawak, Abdul Rahman bin Sebli and Hasnah binti Mohammad Hashim, FCJ, unanimously allowed the appeal.
 
Whether the Child was entitled to inherit
 
The Federal Court focused first on the crux of the appeal, namely, the definition of ‘issue’ in section 6 of the DA 1958 and held that ‘issue’ in relation to the deceased did not depend on the legitimacy of the issue or descendant of the deceased. The relevant part of section 6 (with emphasis added for clarity) provides:
 
“6.  Succession of intestate estates
 
(1)   After the commencement of this Act, if any person shall die intestate as to any property to which he is beneficially entitled for an interest which does not cease on his death, such property or the proceeds thereof after payment thereout of the expenses of due administration shall, subject to the provisions of section 4, be distributed in the manner or be held on the trusts mentioned in this section, namely-
…
 
(g)  if an intestate dies leaving a spouse, issue and parent or parents, the surviving spouse shall be entitled to one-quarter of the estate, the issue shall be entitled to one-half of the estate and the parent or parents the remaining one-quarter …”
 
Purposive rule of construction, not literal rule
 
In interpreting the term ‘issue’, the Federal Court empathically affirmed its recent decision of Bursa Malaysia Securities Bhd v Mohd Afrizan Husain [2022] 4 CLJ 657, decided on 31 March 2022, which held that the purposive rule of construction prevails over the literal rule of construction in the interpretation of a statute given section 17A of the Interpretation Acts 1948 and 1967 (“IA 1948/ 1967”). In interpreting a statute, the Court “must favour a construction which promotes the purpose, object or intent of the legislation over a construction which does not” and this approach “does not wait for the state of ambiguity to present before the purposive approach is adopted and applied”.
 
Section 17A of the IA 1948/ 1967 provides:
 
“17A. Regard to be had to the purpose of Act [IA 1948/ 1967]
 
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
 
The Federal Court, declaring that this approach made “cogent sense”, acknowledged that this was a “markedly different approach” from the standard canon of construction applied in the Federal Court’s earlier decisions, the most recent being its majority decision in AJS v JMH & Another Appeal [2022] 1 CLJ 331, decided on 1 December 2021, which applied the literal rule of construction.
 
Purpose of DA 1958
 
In the context of this case, the relevant purpose of the DA 1958 is to regulate the distribution of the estate of any person who has died intestate, that is, without leaving any will prescribing for the distribution of the intestate’s estate. It does not deal with matters of legitimacy of a child or the validity of a marriage unless it is spelt out specifically in the DA 1958 itself.
 
The distribution under the DA 1958 adopts the principle of parity and a person is potentially a beneficiary so long as some lineal connection with the deceased can be established. In the distribution of the estate of the intestate, the intent is to distribute the whole or entire estate.
 
Interpreting section 6 of the DA 1958 (see above), the Federal Court pointed out that it expressly only uses the term ‘issue’ and not ‘child’. On the contrary, the term ‘child’ is used in the LRA 1976. Whilst the term ‘child’ is defined in section 3 of the DA 1958 as meaning a legitimate child, ‘issue’ in the same section is separately defined thus: ““issue” includes the children and the descendants of deceased children.”
 
The Federal Court reasoned that the word ‘includes’ in the definition of ‘issue’ suggests an enlarging or non-exhaustive definition and is intended to “expand or enlarge the category of persons who may succeed or inherit, consonant with the purpose” of the DA 1958. In contrast, the more definitive or comprehensive word ‘means’ is used in the definition of ‘child’. The Court concluded from its survey of the respective dictionary definitions of ‘issue’ in relation to the deceased that the term ‘issue’ “suggests descendants by blood lineage, not dependent on the matter of legitimacy of the descendant”.
 
The DA 1958 does not, whether expressly or by implication, state that only legitimate children may inherit in the case of intestacy. The primary meaning of ‘child’ which may denote or connote legitimacy is displaced by the use of the word ‘issue’ in section 6. This interpretation is reinforced by the deliberate use of the term ‘child’ elsewhere in the DA 1958 but not in section 6. Therefore, being an issue of TKY, the Child was entitled to succeed and inherit under section 6. Her alleged lack of legitimacy did not deprive her of her entitlement to succession under section 6.
 
Article 8 of the Federal Constitution
 
The Federal Court added that such an interpretation complies with the equality guarantee in Article 8 of the Federal Constitution as there is no logical or rational basis to discriminate between and amongst the issue of the deceased. It would in addition promote the welfare of the Child. The Federal Court relied on the celebrated constitutional case, Indira Gandhi v Pengarah Jabatan Agama Islam Perak [2018] 1 MLJ 545, and held that a literal construction resulting in consequences which the Legislature could not possibly have intended (discriminating against the biological issue of the deceased TKY) should be avoided. Instead, a purposive interpretation promoting the welfare of the child should be preferred.
 
The customary marriage of TKY and LYL
 
The Federal Court laid down a further ground for allowing the Child to inherit under TKY’s estate. It found that a Chinese customary marriage had indeed existed between TKY and LYL. This was based on the Privy Council authorities of Cheang Thye Pin v Tan Ah Loy [1920] AC 369 and Khoo Hooi Leng v Khoo Hean Kwee [1926] AC 529 which held that no particular form of ceremony was required to recognise such a marriage and, relying on the report of the Royal Commission on Non-Muslim Marriages and Divorce, that “the only essential legal requirement of a Chinese customary marriage is that the marriage must be consensual”.
 
The Court found no evidence on whether the solemnisation process under the LRA 1976 was complied with. Solemnisation and registration are the two material aspects of the marriage process which must be complied with. This meant that TKY and LYL’s customary marriage, neither solemnised nor registered, was void.
 
However, section 75(2) of the LRA 1976 provides that the child of a void marriage shall be treated as the legitimate child of his or her parent if, at the time of the solemnisation of the marriage, both or either of the parties reasonably believed that the marriage was valid. The Federal Court accepted that the evidence of LYL and the parents of TKY, together with the conduct of the parties, confirmed that LYL had this reasonable belief. The Child was therefore found to be a legitimate child entitled to inherit under TKY’s estate.
 
ANSWERS TO THE LEAVE QUESTIONS
 
As the Leave Questions were focused on ‘child’ and not ‘issue’, the Federal Court declined to answer them.
 
COMMENTARY
 
This case is noteworthy for affirming the following points: 

The legal position laid down by this case would apply equally to an estate of a husband or wife who dies intestate and who has illegitimate issue of his or her own.
 
To avoid the emergence any unexpected surprise beneficiary or beneficiaries after the demise of a husband or a wife, in the case of intestacy, it is prudent that each spouse during his or her lifetime beneficially devises, bequeaths or disposes all of his or her property by way of a will which complies with the relevant laws, including the Wills Act 1959.
 
On the alternative ground for a child to inherit, for section 75(2) of the LRA to apply, two elements must exist: (a) solemnisation of marriage; and (b) at the time of the solemnisation, both or either of the parties’ reasonable belief that the marriage was valid. There is potentially a disconnect, as although the Federal Court expressly stated that it did not find any evidence that the solemnisation process under the LRA 1976 was complied with, it nevertheless proceeded to make a finding that LYL and the TKY’s parent had a reasonable belief that TKY and LYL’s marriage was valid and therefore the Child could be treated as legitimate.
 
However, the key to unlocking this conundrum might be in the Federal Court’s reliance on Cheang Thye Pin v Tan Ah Loy [1920] AC 369 and Khoo Hooi Leng v Khoo Hean Kwee [1926] AC 529. These Privy Council cases held that no particular form of ceremony was required to recognise such a marriage. Thus arguably, the very fact that TKY and LYL’s marriage was consensual could constitute the solemnisation process needed for section 75(2) to apply.
 
This does not detract from the fact that the Federal Court in this case has highlighted a basis for legitimising, under section 75(2) of the LRA, a child of a void marriage which may prove useful in future.
 
Commentary by Trevor Jason Mark Padasian (Partner) of the Family Law Practice of Skrine.