INTESTATE DISTRIBUTION: THE DISTRIBUTION OF A DECEASED’S ESTATE IN THE ABSENCE OF/ WITHOUT A WILL

“Versi Bahasa Malaysia”

INTRODUCTION

The Distribution Act 1958 governs the distribution of estates of a person who dies intestate, which is a person who passes away without leaving a Will.  The Act lays down the method of  inheritance to the deceased’s estates that prioritizes the three main categories of his or her family members, mainly the spouse, issues and parent(s). First and foremost, it has to be noted that this Act applies only to non-Muslims in the Peninsular Malaysia and the Sarawak jurisdictions.

Intestate also includes “any person who leaves a will but dies intestate as to some beneficial interest in his property” under the Distribution Act 1958, whereas an issue is defined in Section 3 of the Distribution Act 1958 as the “children and the descendants of deceased children”.  Child is defined in Section 3 of the Act as “a legitimate child and where the deceased is permitted by his personal law a plurality of wives includes a child by any of such wives, but does not include an adopted child other than a child adopted under the provisions of the Adoption Act 1952″. In Section 3 of the Distribution Act 1958, a parent(s) is defined as the “natural mother or father of a child, or the lawful mother or father of a child under the Adoption Act 1952″.

INSTANCES WHERE THE SOLE SURVIVING FAMILY MEMBER IS A SPOUSE, ISSUE OR PARENT(S)

Under Section 6(1)(a) of the Distribution Act 1958, in the event that the sole surviving family member of the deceased is the spouse, then he or she shall be fully entitled to the entire estate belonging to the deceased. The same law applies where the only surviving family member of the deceased is the issue [See Section 6(1)(c)] or the parent(s) [See Section 6(1)(d)].

INSTANCES WHERE THE SURVIVING FAMILY MEMBERS ARE THE ISSUE AND SPOUSE (WITHOUT A PARENT(S)) OR AN ISSUE AND PARENT(S) (WITHOUT A SPOUSE)

This can be illustrated in Section 6(1)(e) of the Distribution Act 1958 that, if it is the case that the deceased dies leaving behind an issue and spouse, the issue will be entitled to two-thirds (2/3) of the estates while the spouse is only entitled to one-third (1/3) of the estates. The same distribution applies if the intestate leaves behind only an issue and a parent(s), where the Act will seek to prioritize the issue [See Section 6(1)(f)]. It is interesting to note that the issue is prioritized in terms of sum amongst the three main categories of family members.

INSTANCES WHERE THE SURVIVING FAMILY MEMBERS ARE A SPOUSE AND PARENT(S) (WITHOUT AN ISSUE)

On the other hand, should the deceased dies without leaving behind an issue, the spouse and the parent(s) shall have an equal footing in the allocation of the estates. It is stated under Section 6(1)(b) that the spouse shall be entitled to one-half of the estates, while the parent(s) is entitled to the remaining half.

INSTANCES WHERE THE SURVIVING FAMILY MEMBERS ARE THE ISSUE, SPOUSE AND PARENT(S)

According to Section 6(1)(g) of the Distribution Act 1958, it is laid down that should the issue, the spouse and the parent(s) be the surviving family members of the deceased, the issue will be entitled to one-half of the estates, while the spouse and parent(s) one-quarter respectively. This again bring us back to statement that the Distribution Act 1958 designates that the issue should acquire more of the estates, while the spouse and parent(s) have an equal percentage of acquirement as to the deceased’s estates.

INSTANCES WHERE THERE ARE NO ISSUE, SPOUSE OR PARENT(S) AS SURVIVING FAMILY MEMBERS

However, confusion may arise when the deceased does not leave behind any surviving issue, spouse or parent(s). Where will the estates go to, and whom will the estates be distributed to? Under Section 6(1)(i) of the Distribution Act 1958, it is stated that should such a situation occur, the whole of the estate shall be held on trusts for the persons prescribed under the Act.

Firstly, the estate of the intestate shall be held on trusts set out in section 7 for the brothers and sisters of the intestate in equal shares. Further, if the deceased does not leave behind any siblings or if such siblings do not take an absolutely vested interest under such trusts, then the Act provides that the order of the family members of the deceased that shall be entitled to the estates are the grandparents, the uncles and aunts (if there are no grandparents surviving), the great-grandparents (if the uncles and aunts do not take an absolutely vested interest under such trusts) and lastly, the great-grand uncles and great-grand aunts (if there are no such great grandparents surviving).

If, in the situation that the deceased does not leave behind any of these categories of family members or if such family members do not take an interest under the trusts, it is provided in Section 6(1)(j) that the Government shall be wholly entitled to the estates belonging to the person who died intestate.

As the distribution of estate of a deceased is laid down with rigidity under the Distribution Act 1958, it is more desirable for a person to write a Will to distribute his or her estate according to their wishes.

Under the Interpretation Acts 1948 And 1967, a Will is defined as “a testamentary document of any description, including a codicil”. In simpler terms, it is a legal document by which a person expresses his or her wishes on how to distribute their property after their passing. It is a beneficial and important document for those who have been appointed as a beneficiary by the deceased. The estates will be distributed to the beneficiaries according to the wishes of the Testator. However, what is the importance of making a Will and what are the benefits associated with making a Will?

THE IMPORTANCE OF MAKING A WILL

Perhaps one of the most important reasons for a person to have a Will is so that they can select the beneficiaries of their estates according to their intentions. As tomorrow is uncertain, it is wiser for a person to have an assurance of who and how their estates will be distributed after their passing, as it certainly is not desirable to let the state intervene that may go against the wishes of the person regarding the distribution of estates.

CONCLUSION

To conclude, the distribute of estates of a person who dies intestate is governed by the Distribution Act 1958 but such a distribution method is undesirable as that may go against the deceased’s intentions and wishes. Hence, it is more advantageous for a person to leave a Will than not, as there are indeed numerous advantages associated with having one.

Jessy Wan Yuen Mun