Whether only brothers and sisters of the deceased living at the time of the deceased’s death are entitled to the deceased’s intestate estate? (How will an intestate’s estate be distributed?)
If a person dies without leaving a Will, it means that the person has died “intestate”. Once a Letters of Administration (“LA”) is granted by the High Court, the deceased’s intestate estate will be distributed according to Section 6 of the Distribution Act 1958 (“the Act”).
In the event if an intestate dies leaving no spouse, issue or parent or parents, then the whole of the estate of the intestate shall be held on trusts for the following persons living at the death of the intestate in the following order and manner, namely:
a) Brothers and sisters;
c) Uncles and aunts;
d) Great grandparents;
e) Great granduncles and grand aunts; and
f) The Government.
In the case of Gan Cheng Khuan v Gan Kah Yang & 2 Ors  7 AMR, the Court of Appeal decided that if the brothers and sisters of the intestate predeceased the intestate, then their child or children (i.e., nieces and nephews of the deceased) cannot be entitled to claim for the deceased’s estate.
Facts of the case: The appellant is the administrator of the estate for Gan Cheng Keong, the deceased who passed away on 27th March 2009. The respondents are the children of Gan Cheng Yee (deceased’s eldest brother) who died on 27th January 1979.
The respondents in this case are not the issues of the deceased but the nephews. They sought to claim for entitlement to the distribution of their late uncle’s estate. It was argued that the entitlement of nephews and nieces is not dependent upon a brother or sister of the intestate surviving the intestate.
The main issue arose was whether only the brothers and sisters of the deceased who were living at the time of the death of the deceased are entitled to the distribution of the deceased’s estate. The High Court decided that the respondents are entitled to their late father’s share in the deceased’s estate. It was further held that although Gan Cheng Yee had predeceased the deceased, his share in the estate is not forfeited as he had left issue namely, the respondents.
The Court of Appeal’s decision
It was decided that the respondents cannot take under their late father’s share the estate of the intestate under Section 6(i) of the Distribution Act 1958. There was a great emphasis placed on the words “living at the death of the intestate”.
The respondent’s father died on 27th January 1979. Thus, he was no longer living on 27th March 2009, at the death of the intestate. As a result, the respondent’s father did not qualify under “the brothers and sisters of the intestate who were living at the death of the intestate”.