The court recognized the prevailing customary laws of the Iban regarding inheritance rights, ruling that the Plaintiff, married to the Deceased under Iban custom, is the rightful heir despite issues of ethnicity.

JUDGMENT

Christopher Chin Soo Yin JC:

(After Full Trial)

Background Facts

[1] The facts of this case can be narrated from the following chronology of events:

18 June 1998 - ATEI ANAK DELI ('the Deceased") married one LINA ANAK BANDAN (DW2);

18 June 1999 - The 1st Defendant was born to the Deceased and DW2 Lina A Bandan and was their only child;

23 March 2001 - The Deceased divorced his wife DW2 Lina A Bandan under Adat Iban Order 1993 . Custody of the 1st Defendant, who was then 17 months old was given to the biological mother DW2 Lina A Bandan as he was still being breast fed.

30 March 2003 - The Plaintiff marries the Deceased under s 148 Adat Iban Order 1993 . This union did not bear any issue;

23 August 2004 - The marriage ceremony was performed in the Chief's Court Selangau;

2009 - The deceased commenced contributions to KWSP;

18 December 2018 - The Deceased passes away intestate;

31 December 2018 - Letters of Administration of the estate of the Deceased was granted to the 1st Defendant despite the objections of the Plaintiff.

[2] The Deceased's estate's main asset was his credit balance with KWSP which at the time this Suit was instituted was in the region of RM64,602.60 but has grown to the princely sum of RM72,498.87 as at 9 September 2020 with dividends or interest still accruing. The account was opened and contributions first commenced in 2009. The current dispute is who the rightful beneficiary of this KWSP account is.

[3] In deciding this dispute, it is required to decide, among other things, if the estate of the Deceased can be wound up under Adat Iban and whether the marriage of the Plaintiff (a non Iban) with the deceased can be recognized under Iban cusom.

[4] The 1st Plaintiff and the Deceased lived as husband and wife for 15 years until his demise.

Agreed Issues

[5] Parties have agreed that the following are the issues to be decided in coming to a decision in this case:-

a. Whether adat Iban and customs are applicable to decide on inheritance/succession of the Deceased's Estate;

b. Who between the Plaintiff and the 1st Defendant has the right of inheritance/succession over the Deceased's estate.

c. Whether the marriage between the Plaintiff and the Deceased was valid;

d. Whether KWSP money totaling RM72,498.87 as at 9 September 2020 was wholly earned during the deceased's marriage to the Plaintiff;

e. Whether the 1st Defendant was brought up by his natural mother upon her divorce from the Deceased.

Firstly, Whether Adat Iban And Customs Are Applicable To Decide On Inheritance/Succession Of The Deceased's Estate

[6] It was not disputed that the Deceased, the 1st Defendant and the 1st Defendant's biological mother were of the Iban race.

[7] The distribution of his Estate upon his demise would be regulated by the Distribution Act 1958. However in the case of the State of Sarawak, this Act has been modified by the Modification Of Laws (Distribution Act 1958) (Extension To The State Of Sarawak) Order 1986 where in Section 2:-

[8] The Distribution Act 1958 is modified in the manner set out in the Schedule

[9] Section 1(2)(b) of the Schedule provides:-

"(2) In the case of Sarawak, nothing in this Act shall apply to the estate of nay person professing the Muslim religion nor shall this Act apply to the distribution of the state of any natives of Sarawak"

[10] Section 17 Of The Sarawak's Administration Of Estate Ordinance provides (emphasis added):-

"On obtaining probate or letters of administration the executor or the administrator, as the case may be, shall forthwith

(a) Collect and recover all the property, assets and effects covered by the grant;

(b) Discharge thereout all the debts due by the deceased which are legally recoverable; and

(c) Distribute the residue of the estate among the beneficiaries or heirs of the deceased or as the case may be , in the shares to which they are entitle by recognized law or custom"

[11] Linton Albert J in Jagai Anak Nan v. Nanai Anak Meluda (2013) 7 BLR 46 cited with approval the decision of Lee Hun Hoe J (a