In Malaysia, when a person dies without leaving a valid will, it is referred to as dying intestate. The distribution of the deceased person’s estate in such cases is governed by the laws of intestacy, specifically the Distribution Act 1958 (“Act”). It is pertinent to note that the Act is only applicable to non-Muslims in Peninsular Malaysia and Sarawak. The Act sets out the rules for the distribution of the estate among the deceased person’s surviving relatives.
Section 6 of the Act provides for the distribution to 3 main categories, namely, the deceased’s parents, spouse and issue. An ‘issue’ is defined in Section 3 of the Act as the ‘children and descendants of the deceased’s children’. The general scenario and the manner of distribution of the estate are as follows: –
Q1: What if one dies intestate, leaving no spouse, no issue and no parents?
Section 6 of the Act further provides for such situation where the following person(s) or body are entitled to claim the deceased’s estate in accordance to priority: –
Q2: If Charles died intestate, leaving no spouse and parents. He has 2 children, William and Harry. William predeceased Charles and has 2 other children, Dorothy and Edward who are also Charles’ grandchildren. How would the estate be distributed?
Under the Act, ‘issue’ extends the generational lineage to the deceased’s grandchildren, whose immediate parents are the children of the deceased. This position is validated by the Federal Court in the recent case of Tan Kah Fatt & Anor v Tan Ying  1 LNS 63.
Dorothy and Edward are each entitled to 1/4 share of Charles’ estate because their father, William would have been entitled to a half share had he been alive. Therefore, Harry will receive 1/2 share while Dorothy and Edward will each receive 1/4 share of Charles’ estate.
Q3: What if the deceased died intestate, leaving his wife who is pregnant. Does the child in the womb has a right over the estate?
Section 5 of the Act recognises the right of inheritance of the unborn child provided that the child is subsequently born alive.
Q4: Is an illegitimate child entitled to inherit under the Act?
Yes, an illegitimate child has a right to inherit so long as it can be proved there is some genetical or blood lineage connection between the illegitimate child and the deceased.
Q5: Does the right to inherit under the Act extends to an adopted child?
Yes, an adopted child has the same rights of inheritance as a biological child, provided that the adoption is legally done under the Adoption Act 1952.
Q6: What about half-siblings of the deceased? Can they inherit from the deceased?
Yes, siblings who share a common father or mother of the deceased is entitled to receive the estate only if the deceased died living no parents, spouse and issue. This position is confirmed in the recent case of Alagamah Ponniah & Ors v Theresa Mariasoosay & Ors  4 CLJ 189.
Q7: If the deceased person has a valid will to dispose of part of his estate, would the Act apply to the rest of the estate?
Yes, the part of his estate not disposed of under the will shall be distributed in the manner provided by the Act.
Additionally, if a beneficiary under a valid will predeceased the testator, the portion of the estate that it would have inherited will form part of the residuary estate. Such residuary estate will be distributed in accordance to the Act if the will does not specifically deal with the residual portion of the estate.
The Act seems to be in favour of the deceased who is survived by the spouse, issue or parent, as the primary intention is to safeguard the welfare of the children or the descendants of the deceased’s children.
However, not having a will and relying on the Act for the distribution of assets according to the law of intestacy can lead to many disadvantages such as:-
- 1) Lack of control – Without a will, you relinquish control over how your assets will be distributed after your death. The law of intestacy determines the distribution based on a predetermined formula, which may not align with your wishes or priorities. This lack of control can lead to unintended beneficiaries or exclusion of individuals you intended to provide for.
- 2) Potential disputes among family members – When there is no clear guidance provided by a will, disputes can arise among family members over the distribution of assets. This can lead to strained relationships, conflicts, and even costly legal battles. A well-drafted will can help minimize the chances of such disputes and provide clear instructions for asset distribution.
- 3) Delays and complications – Without a will, the process of distributing your estate can become more complex and time-consuming. The court will need to appoint an administrator to handle the distribution, which can cause delays and additional expenses. This can be especially problematic if your loved ones are in immediate need of financial support or if your estate includes complex assets.
- 4) Higher costs – The lack of a will can result in higher administrative costs. The legal process involved in distributing the estate according to the laws of intestacy may require additional court proceedings, paperwork, and legal fees. These costs can reduce the overall value of the estate and diminish the inheritances received by beneficiaries.
- 5) Special circumstances ignored: Intestacy laws typically provide a standard distribution scheme, which may not account for unique family dynamics, such as blended families, stepchildren, or dependents with special needs. A will provides an opportunity to make provisions for specific needs, such as guardianship for minor children, charitable donations, or the care of pets. Without a will, these specific instructions may not be addressed, and important considerations for the welfare of your loved ones or causes you care about might be overlooked.
This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.
About the author
Chan Jia Ying
Dispute Resolution, Civil Litigation (Corporate & Commercial), Construction Disputes, Debt Recovery & Tax
Harold & Lam Partnership