The Blended Family

A situation may arise where the testator leaves the estate to the testator’s existing spouse and children to the exclusion of the testator’s children by a previous marriage.

In such a situation, the court cannot assist them in any way as the testator has absolute testamentary freedom to leave his property to anybody he chooses, the only exception being Sect 3 of the Inheritance (Family Provision) Act 1971 that allows a category of persons who have been dependent on the testator and who have been left out of his will to apply for reasonable maintenance (see Carmel Mary Soosai v Josephine Lourdasamy Ratnavathy R. Soosai & Ors [1987]CLJ (Rep) 498).

It is to be noted that although the said Act applies throughout Malaysia, it does not apply to the estates of Muslims or natives of any of the states in East Malaysia (Sabah and Sarawak).

The category of dependants is:-

1. (a) A wife or husband;
2. (b) Unmarried daughter or who is mentally or physically disabled, incapable of maintaining herself;
3. (c) An infant son;
4. (d) Son who is mentally or physically disabled, incapable of maintaining himself.

Sect 3 of the Inheritance (Family Provision) Act 1971 confers a statutory right on a surviving spouse and infant children or dependants incapable of maintaining themselves to apply to court to order a payment out of the net estate of the deceased for their maintenance, unless the surviving spouse and children are already entitled to more than 2/3 of the deceased’s estate.

The testator needs to take note that he cannot dispose of more than 1/3, if the remaining is not enough to maintain the surviving spouse and/or children.

Net estate means all the property which a deceased person had power to dispose of by his will (otherwise than by virtue of a special power of appointment) less the amount of his funeral, testamentary and administration expenses, debts and liabilities and estate duties payable out of his estate on his death.

Son and daughter includes a male or female child adopted by the deceased under the Adoption Act 1952 and en ventre sa mere at the date of death of deceased, or legitimated under the Legitimacy Act 1961.

The court will have regard to whether the surviving spouse was a good and loving wife, the length of the marriage – the longer the marriage the greater the deceased’s obligation to the surviving spouse, whether or not the marriage was successful.

The provision for maintenance made by an order, unless the deceased’s net asset is less than RM40,000.00 is by periodical payments of income for the period specified, but not later than the period set out in the Inheritance (Family Provision) Act 1971 (Sect 3(2)(a), (b), (c), (d)) or in any case, of his or her death:-

1. (a) In the case of surviving spouse, remarriage;
2. (b) Unmarried daughter - upon marriage, under a disability – cesser of disability, whichever is the later;
3. (c) Infant son, upon attaining 18 years;
4. (d) A son under a disability, the cesser of his disability.

The second issue which is closely related to the first is to devise a means of satisfying the testator’s wish to leave their estate to their partners but also to ensure that their partners do not change their will after their death thereby disinheriting the children. Clients commonly express the fear of the new partner taking the children’s inheritance.

The usual devises considered are the contract not to change wills, the right of occupancy, and the life estate. The trouble is that any long-term arrangement creates an inflexibility that is unsuited to all the possible changes that might occur.

For instance, a couple with children from other relationships make wills at the age of 50. One dies shortly thereafter. Five years later at the age of 55 the survivor meets and enters into a new relationship which continues until they make new wills at age 80, 25 years later. Naturally the interests of children of a relationship 25 years ago will be subordinate to those of the surviving spouse. If they do not qualify under Sect 3 of the Inheritance (Family Provision) Act 1971, they get nothing.

Events such as recession, wars and global warming, catastrophic illness or injury can substantially change the financial position of the survivor who is locked into an inflexible arrangement and may be unable to make appropriate decisions.

Long term arrangements can also create disharmony between the aging life tenant, who, as is common as we age, do not want to be accountable to the children and stepchildren whilst they, as remaindermen, caring for their asset, demand repairs or have a say in who is in residence.

There is no easy answer. Long-term arrangements are better avoided. If the estate is sufficiently large then there is scope for the children to benefit. If not then clearly the old should be looked after before the young. Experience says that far from eagerly leaving estates to new partners it is difficult to have clients provide for their new partners ahead of their children. In the end there has to be trust in life and in the partner in whom far greater trust than financial assets has been placed.

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