|When a person dies without making a will
24/11/2006 The Sun-Law & Realty By Roger Tan
When a person
dies without making a will, we lawyers say he has died intestate. His
property is then known as his estate, and his children, his “issue”.
The law which provides for the distribution of the
property of a person who dies intestate is contained in the Distribution Act
1958 (“Distribution Act”), as amended by the Distribution (Amendment) Act
1997 which came into force on 31 August 1997.
The Distribution Act applies to non-Muslims in West
Malaysia and Sarawak, but it does not apply to Muslims in Malaysia,
non-Muslims in Sabah and the natives in Sarawak.
Under the Distribution Act, the word “child” means a
legitimate child, and where the deceased had more than one lawful wife,
includes a child by any of such wives but it does not include an adopted
child other than a child adopted under the Adoption Act 1952.
The word "issue" means the deceased’s children and
includes the descendants of his children who died before him. It also
includes any child who at the date of the deceased’s death was only
conceived in the womb but who had subsequently been born alive.
"Parent" is defined under the Distribution Act as the natural mother or
father of a child, or the lawful mother or father of a child under the
Adoption Act 1952.
Distribution of the deceased person’s estate
When a person dies intestate, his property will not go to
It will be distributed among his surviving family members
according to the Distribution Act. The same law applies to male and female
Section 66(1) of the Law Reform (Marriage and Divorce)
Act 1976 provides that “the property of a wife who at the time of her death
is judicially separated from her husband shall, in case she dies intestate,
go as it would have gone if her husband had been then dead.” This provision
will however not apply to the property of a husband who is judicially
separated from his wife, and the wife would still be entitled in the same
way as a surviving spouse as if no judicial separation had been made.
As respects divorced spouses, they remain surviving
spouses until the decree (divorce order) is made absolute.
Generally, the estate will be distributed among the
deceased’s immediate family: his parents, his spouse, and his issue.
The distribution of the estate of an intestate who dies
after 31 August 1997 is shown in the following table:
|If the deceased dies leaving…
|• spouse only,
but no parent and issue
|• issue only,
but no spouse and parents
|• parents only,
but no spouse and issue
|• spouse and issue,
but no parents
|• parents, spouse and issue
When a person dies leaving no parent, spouse and issue
If a person dies leaving no parent, spouse and issue, his estate will go to
the following persons in order of priority:
(a) brothers and sisters
(c) uncles and aunts
(d) great grandparents
(e) great grand uncles and grand aunts
In other words, if a person dies leaving no parent, spouse and issue, the
estate will go to his brothers and sisters, who will share the estate
equally. If a person dies leaving no parent, spouse, issue, brother and
sister, the estate will go to his grandparents, and so on.
It follows if a person dies leaving no parent, spouse, issue, and any of the
above family members, then the whole estate will go to the government.
If the intestate has more than one lawful wife, then such wives shall share
among them equally the share which the wife of the intestate would have been
entitled to, had such intestate left only one surviving wife.
The Distribution Act also provides that when the intestate and his/her
spouse have died in circumstances rendering it uncertain which of them
survived the other, then notwithstanding any rule of the law to the
contrary, it will be regarded as if the spouse had not survived the
Section 4 of the Distribution Act provides that:
(a) the distribution of the movable property of an intestate shall be
regulated by the law of the country in which he was domiciled at the time of
his death; but
(b) the distribution of the immovable property of an intestate shall be
regulated by the Distribution Act wherever he may have been domiciled at the
time of his death.
Inheritance (Family Provision) Act 1971
Finally, the above will, of course, not apply if the deceased has left a
But the above is also subject to the overriding jurisdiction of the court to
make reasonable provision for the maintenance of the following dependants of
(a) a wife or husband;
(b) a daughter who has not been married, or who is, by reason of some mental
or physical disability, incapable of maintaining herself;
(c) an infant son; or
(d) a son who is, by reason of some mental or physical disability, incapable
of maintaining himself,
if the court is of the view that the disposition of the intestate's estate
does not make reasonable provision for the maintenance of that dependant.
However, no such application shall be made to the court where the
disposition of the intestate's estate is such that the surviving spouse is
entitled to not less than two-thirds of the income of the net estate and
where the only other dependant or dependants, if any, is or are a child or
children of the surviving spouse.
The writer is the Chairman of the Conveyancing Practice Committee, Bar
Council, Malaysia www.malaysianbar.org.my