As parents, we naturally want to protect our children. Most of us assume that if anything happens to us, our children will simply be taken care of by close family members.
But in Malaysia, the reality is not always that simple. Without clear instructions, serious disagreements can happen within the family, and sometimes the matter even ends up in court.
A recent Malaysian High Court case, Tan Lay Khim & Anor v Keang Ngo Chor & Anor [2025] CLJU 2265, is a clear example of what can go wrong when there is no proper Will in place.
Background of the case:
In this case, both parents passed away in a road accident, leaving behind a young child aged about 2 to 3 years old.
After their passing, a dispute happened between both sides of the family over who should take care of the child.
The Applicants (mother’s side) said they had been taking care of the child since birth and handling the child’s daily needs
The Respondents (father’s side) also wanted custody and even applied for adoption without telling the mother’s family
What the court had to decide?
The High Court needed to decide:
- Who should take care of the child (custody and guardianship); and
- Whether one side should be given legal authority even though another adoption application had already been filed.
How the court made its decision:
Under Malaysian law, the most important factor is always: The welfare of the child must come first.
This means the court does not simply choose based on who “wants” the child more. Instead, it looks at what is best for the child’s future.
In making its decision, the court looked at:
- Who has been the child’s main caregiver so far?
- Which environment provided more stability?
- What evidence each side provided?
- Reports from the Social Welfare Department
Outcome of the case:
The court decided in favour of the mother’s side (the child’s grandparents).
They were given custody and guardianship of the child, while the father’s side was given visitation rights.
The bigger question: Could this have been avoided?
This case became complicated mainly because the parents did not leave any clear instructions about who should take care of their child.
As a result:
- Both sides of the family stepped forward.
- Disagreements happened.
- The matter had to be decided by the court.
- The process became stressful, emotional, and time-consuming for everyone involved.
What a Will can do in this situation?
A properly written Will can make things much clearer and easier for everyone involved. Here’s how:
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You can appoint a guardian for your minor children.
You can clearly state who you want to take care of your child if both parents pass away.
This does not completely remove disputes, but it gives clear guidance and direction.
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You can plan for your child’s expenses.
A Will (through a trust structure) allows you to set aside money for your child’s needs, such as:
- Daily living expenses
- School fees and education
- Medical costs
This ensures your child is financially supported.
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You can support the chosen guardian.
Taking care of a child is not only emotional, it also involves money.
You can also provide an allowance for the guardian to help cover costs, making it easier for them to take on the responsibility.
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You can reduce the risk of family disputes.
When there are no clear instructions, different family members may have different opinions on what is “best” for the child.
A Will helps clearly state your wishes, reducing misunderstandings and possible legal disputes.
This case shows an important reality:
If no clear plan is made, the court will decide what happens to your child.
And while the court always tries to do what is best for the child, that decision may not always reflect what you personally would have wanted.
With a properly prepared Will, you can make your own decision in advance and protect your child’s future the way you intended.
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