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Illegitimacy, Inheritance and Will

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What is illegitimacy and how does that affect me or my child?

A child is considered “illegitimate” by the law if born to unmarried parents. Illegitimacy affects the child’s ability to inherit their parent’s assets and to claim maintenance from the parent’s estate. Illegitimacy may also carry a social stigma.
To avoid this, all parents, especially single parents with illegitimate children, should make a will to ensure that assets are passed on to children, and that children are appointed a trusted guardian to take care of them if parents pass away before the children reach 21 years of age.

	Non-Muslims	Muslims
Definition	Child is born to unmarried parents If you subsequently marry the biological father, your child becomes legitimate on the date of marriage	Child is born to unmarried parents, or born within 6 months of marriage
Law	Intestate Succession Act Family Justice Court	Muslim Intestate Law (faraid) Syariah Court
Consequences of illegitimacy	Lower priority for inheritance of parents’ assets compared to legitimate children Unable to apply for maintenance support from deceased parent’s assets Likewise, parents are not entitled to their illegitimate child’s assets	Child can inherit their mother’s estate Child cannot inherit their father’s estate, even if the father has no other legitimate children
Legal Adoption	You or step-parents can legitimise your child by adopting them	Adoption will not change the legitimacy status of the child under Syariah law Adopted children are also not entitled to their adoptive parents’ assets but are entitled to a share of their biological parents’ assets Conversely, their biological parents and siblings are also entitled to a share of their assets, while their adoptive parents are not
Writing a Will – Purpose	Parents may execute a will to gift part or all of their estate to their illegitimate children	Parents may execute a will to gift up to maximum 1/3 of their estate to their illegitimate children Parents can also gift their illegitimate children assets while they are still alive
Writing a Will – Requirements	Made by someone above the age of 21 Signed at the end by the person creating the will Made in the presence of 2 or more witnesses at the same time	Made by someone above the age of 21 Signed at the end by the person creating the will Made in the presence of 2 or more male Muslim witnesses at the same time. (Wills Act does not state this requirement) Can only gift up to 1/3 of their estate in their will Beneficiaries of the will cannot be heirs who will get their share from Faraid

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Illegitimacy, Inheritance and Will

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