Succession Full

Introduction
(Questions not included)

Inheritance, also called succession, is the devolution of property on an heir or
heirs upon the death of the owner.
Succession is a branch of property law with some links to land law, trusts, and
personal property, as well as to family law.
The making of a will, or the failure to do so, can make or break families, can
bestow great benefits on some but lead to disappointment, bitterness or even
hatred in other cases.
Inheritance of property cannot occur unless goods are regarded as belonging to
individuals rather than to groups and unless the goods are of such permanence
that they continue to exist and to be useful beyond the death of the owner.
Compiled by: Vijitha Karunatilleke

The institution of inheritance has been criticized because it renders possible the
acquisition of wealth without work and because it is regarded as a principal
source of economic inequality.
Intestate Succession applies when a person dies without a valid will. His assets will be
distributed among the heirs according to the applicable personal law.
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Testate Succession
A person (Testator) dies leaving a valid Will; his property will be distributed
among the beneficiaries of the Will as per his wishes.
Will is the chief legal instrument by which people dispose of their property on
their death.
When a person dies leaving a will, the personal laws will not apply in regard of
the distribution of property.
The testator appoints an executer to execute the Will after the death.
A Will can contain disposal instructions on title to land, shares, ownership of
movable property, instructions on funerary expenses and burial etc.
Probate
The order, the court makes when the Will is proved genuine.

Executor
The person who initiates the testamentary action, named on the Will.
Beneficiary
The person nominated to inherit the estate of the Testator
The Wills Ordinance No 21 of 1844:
Applies to all persons governed under General Law and personal laws including
Muslim Law.
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a man disposed his property
to his illegitimate children when they did not have a right to succeed intestate to the
, the last will was executed

in favour of the legitimate child and the illegitimate child.
, disposal of property by way of a will to
brothers and sisters excluding the wife and children.
Court upheld and declared that the will is valid and enforceable in all the above cases.

(Section 2)
Capacity to make a Will:
(Section 3)
Venia Aetatis
The privilege of age sometimes granted a minor under Roman or civil law, entitling
the minor to the rights and liabilities of a person of full age.
[The Wills (Amendment) Act, No. 5 of 1993 - Section 3]
Formality:
For the Will to be valid it should be prepared according to the provisions of the
Prevention of Frauds Ordinance No 7 of 1840.
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(Section 4 PFO)
Disqualified persons to make wills:
There are certain categories of persons, who are expressly prohibited by the law of
making wills;
1. Insane persons and proDigals (wasteful person).
2. An insane person who manifestly has lucid intervals may make a will during
such interval.
3. People who have not attained the age of majority.
4. Those who are born deaf and dumb. Deaf who can speak, and dumb who can
write can make a will.
5. Those who on account of their hatred to any particular religion make their Will
to the prejudice of those parts of their family who profess it.
6. Those who have been educated in any charitable institution which has the
privilege of succeeding to the property of the persons maintained therein.

Disqualified Persons to Benefit from a Will:
Following persons are disqualified:

1. Enemy aliens (citizen of foreign country at war).
2. A person who had caused the death of the Testator.
3. A person who had concealed the Will fraudulently.
4. A widow who has married within 9 months of the husband s death.
5. The notary before whom a Will is executed.
6. The witnesses who attested the Will.
Even an unborn can benefit from a will.
Appointment of Heirs:
One or more persons would be named as heir or heirs.

The description or what proportions are given to the heirs is immaterial as long
as there is a clear intention of the testator to grant property to the heirs.
When several persons are appointed as joint heirs, and one or more persons die
before the testator, their share goes to the survivors, unless each of heirs has only
a separate portion of the inheritance.
Every person appointed as heir under a Will is at liberty either to accept or
repudiate the inheritance.
Inheritance does not decent on the heirs, unless he does an act as accepting it.
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, Court held that a last will is not a deed which is
required to be registered.
Types of Wills:
Nuncupative Wills
A last will or disposition verbally made before a notary and witnesses must be
held good in the case the testator dies before the minutes or notes are drawn, and
thus not are able to sign it.
As a general rule, verbal or nuncupative wills are reduced to writing and entered
by the notary in his protocol, from which copies are given by him whenever
required and after his death by the Court.

Close Wills
A close will could be written either by the testator or by some person under his
direction provided that such person takes no benefit thereby.
It must be written on a properly stamped paper and signed by him, and so given
to the notary who in the presence of two witnesses, puts it in an envelope and
seals it.
If such person is not cautious to keep the sealed envelope unbroken and
unopened, it loses its force.
When such will is confirmed by the death of the testator, it is opened by the
notary, in the presence of witnesses.
Wills of Soldiers and Sailors

A testament (jure militari) made by soldiers and sailors in active service are valid
even after the lapse of a year from its execution.
Joint Wills
Roman Dutch law permits testators to execute joint last wills by giving a specific
scheme of distribution of their properties.
, husband and wife may made their last
will in one and the same written instrument.
A surviving spouse, who has made a will jointly with a pre-deceased spouse as
regards their common property, and has been appointed heir to such pre-deceased
spouse, cannot make a different dispossession in respect of that portion of the
common property.
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.
, a joint will is in reality two separate
wills, taking effect on the death of each testator as to its interest.
In the it was held that
where the husband or wife dispose the inheritance under the joint will, he or she
cannot revoke it, and it is not revoked by his or her subsequent marriage.
Wirasinghe v. Rajapakse J 6 NLR 356, husband and wife made a joint will
bequeathing their property to their children and reserving life interest for the
survivor. After the death of the wife, husband acquired the land and sold it to the
defendants. The heirs of the testators brought the action for the land against the
defendants, and contended that the husband had only a life interest over the land.
Surviving spouse was held to be precluded by the terms of the will from disposing
of the property.

Codicils:
Codicil is a less perfect instrument than a Will which can alter a Will.
In form, codicils and wills for the greater part agree.
The substantial difference is confined to two points;
By a codicil no direct appointment of the heir can be made.
A testament can never be made by a private paper, but a codicil may.
A codicil can neither contain substitution of a direct heir, nor dis-inheritance of
children, nor can it impose a condition on the heir already instituted.
There may be more than one codicil, which is not the case with testaments.
, a codicil must be read with the will, and the will

and the codicil must be construed as forming as far as they can one testamentary
disposition.
(Section 6 - Wills Ordinance No. 21 of 1844)

Revocation:
A last will may be revoked under the following circumstances.
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Last will became void by express revocation by subsequent will or by an act,
attested by the same number of witnesses declaring his intention to die intestate.
The making of a second perfect will.
Breaking of seals of the envelope of a close will.
When the persons named by the testator as heirs happen to die before him, or
refused or could not become heirs.
When an unmarried person made a will and afterward married and had children
by the marriage, their birth amounted to a revocation of the will.
Modes of Revocation
Only six modes, by;
1. Executing another will or codicil.
2. Some writing declaring an intention to revoke the will and executing another
will.
3. Burning.

4. Tearing.
5. Otherwise destroying.
6. Giving direction to someone to revoke it with the intention of revoking the same.
No testamentary instrument can be revoked by implication.

, where a testator intended to revoke both his
will and codicil, but by mistake or ignorance destroyed only the will, it was held
that the codicil was not revoked.
A last will not found in the custody of the testator forthcoming at his death is
presumed to be destroyed by himself animo cancellandi. But such presumption
is rebuttable by evidence where in the absence of circumstances giving rise to
such presumption.
A will, has been irretrievably lost or destroyed, its contents may be proved by
secondary evidence and probate granted of a copy embodying the terms of the
will.
Prevention of Frauds Ordinance, make specific provisions in relation to revocation of a

will
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(Section 6)
, the testator threw his will on fire to revoke it, but
his niece snatched it off without his knowledge and put it away. Hearing this, the
testator asked her to give it up; she promised to, but did not. It was argued that it is
a fraud which ought not to defeat his intention so, the revocation is still good.
, a testator drew lines on
various parts of his will, wrote on the book of it "This is revoked" and threw it. A
servant put it on a table in the kitchen which remained lying about till the testator's
death, seven or eight years later. It was held that the will was revoked.

A symbolical burning, tearing, or destruction will not do. There must be the act as
well as the intention.
"All the destroying in the world without the intention will not revoke a will or all the
intention in the world without destroying will do"
Dr. Dean
, a will can be revoked only in one of the

modes specified in section 6 of the Prevention of Frauds Ordinance.
, revocation of a will by destruction
must be proved not only by evidence of an intention to revoke but also by an actual
destruction in an appropriate manner.
, the deceased was known to
have made a last will attested by a notary public. His wife the appellant applied for
letters of administration on the basis that he died intestate. The respondents filed
objections denying this and claimed that he had made a last will, the original of
which was being suppressed or had been destroyed. The protocol of the original
will and other documentary evidence led to prove that the deceased had made a last
will. The appellant took up the position that the will not forthcoming at his death, it
is presumed to have been destroyed by him animo revocandi. The Court on
secondary evidence issued probate on the protocol of the last will, concluded that
the testator died leaving a will.
, Thambiah J. a duress had not been
established in the tearing up of a last will. Revocation animo revocandi by the
deceased testatrix has been proved. The tearing up of the Will shall not serve to
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revive an earlier will, made by the said testatrix. The devolution then will be as on
intestacy.
Presumption of Due Execution

, a duly executed last will on the face of it extracts the
presumption that it is a genuine will. But such presumption should genuinely been
drawn with caution.
, the propounder of a last will proves
the due execution of the document, a presumption would arise that the testator
knew and approved of its contents, unless suspicion attaches to the document by its
very nature.
If, after proof of due execution, there is nothing intrinsically unnatural in the
document, the burden is shifted to the objector to show that there was undue

influence or fraud or that the deceased was not of a sound disposing mind when he
made the will.
Where the testator is able-while instructions are given to the will, to address him to
the matter and indicate his mind, it would not be fatal to the will that he may not
have been able to follow all its provisions when it was read out to him before
signature.
Section 2 of the Wills Ordinance No. 21 of 1884 makes provisions with regard to
the disposal of property by a will.
Section 4 of the Prevention of Frauds Ordinance NO.7 of 1840 provides the
mode of execution of a will.
, Wood Renton J. considered the formalities to be
followed in execution of a will. It was held that the explanation of a will to a
testator and making of such explanation in the hearing of the attesting witnesses are
not pre-requisites to its validity. It is sufficient if the testator, at the moment of
execution, believes the will to be, and if the will is, in accordance with instructions
previously given.
,Viknarajah J.
The principle relating to presumption of due execution was considered in length
and held, that for granting probate rules are:
1. The party profounding the will must satisfy the conscience of the Court that the
instrument propounded is the last will of a true and capable testator.
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2. If a suspicion attaches to the will the Court should not pronounce in favour of it
until the suspicion is removed.
3. In addition the will must be executed according to law. (Section 4 - Prevention of
Frauds Ordinance).
Objections to the Grant of Probates and Letters of Administration
When an application is made by an executor named in the will under section 524 of the
Civil Procedure Code and order nisi is entered, one cannot object to the grant of
probate on the basis of questioning the validity of certain bequests in the will.
In Re , Bonser CJ. the

testator was living with the petitioner over twelve years, in separation from his
wife. He had appointed the petitioner as the executrix in his last will by which he
had left the bulk of his property to his illegitimate children by her. She applied for
probate under section 524 of the Civil Procedure Code and order nisi entered under

section 527. The respondents to the application, brothers and nephews of the
testator, did not raise any objection to the will being proved, but objected to the
bequests in the will to illegitimate children on the ground that they were adulterine
bastards and under the Roman Dutch law, incapacitated from taking under the will
of their father. It was held that, it was not open to the respondents to raise this
contention and the applicant was entitled to probate.
, Pulle J. held that where
an application for probate of a will was made eight years after the death of the
testator, the Court cannot refuse the grant of probate on mere lapse of time.
Burden of proof
The burden of proof of the undue influence is on those who allege it. It cannot be
presumed.
The burden of proving mental competency on the other hand, lies on the
propounders.
To amount to undue influence, the influence exercised must be something in the
nature of coercion (intimidation).
, when a will is proved to have duly executed the
burden of proving that it was executed under an undue influence is on the part who
alleges it. To vitiate a will the influence used must be either by coercion or fraud.
It is for the medical witness to describe the mental condition of the testator; it is
for the Court to determine whether that condition was such as to impair his
testamentary competency.
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Where a suspicion is attached to a will, the Court must be vigilant and jealous in
examining the evidence in support of the instrument, in favour of which it ought
not to pronounce unless the suspicion is removed, and it is judicially satisfied
that the paper propounded does express the true will of the deceased.
Fraudulent Wills:
When there is a written memorandum in a will stating, th

this would be prima facie evidence that the will was read over before,
and not after, the signature of the testator was placed.
Jameel J. held that, In a case
where the propounders of a will knew that the will is a forged will then their
propounding of it could be treated as a fraud practiced on that Court.

Kulatunga J. stated
that; "I am of the view that categories of fraud are not closed and that it should be
left to the Court to decide whether any particular contrivance constitutes a fraud on
the Court having regard to the facts and circumstances of such case."
Undue influence
Any person, who is seeking to set aside a will on the ground of undue influence,
must be able to establish that such influence was sufficient to destroy free agency.
, undue influence is not to be presumed, but must be
proved by the party alleging it. In order to be undue, the influence must amount to
coercion or fraud. In the case of wills, unlike that of gifts, the existence of a
fiduciary relationship does not create any presumption of undue influence.
, Jayethileke J. the testator had executed the will
when he was seriously ill, bequeathing to his wife all his property. The validity was
challenged on undue influence. The only evidence in support of the plea was that at
the time of the execution of the last will, the wife was present and weeping. It was
held that the Court was not entitled to presume that the wife exercised undue
influence on the testator.
Wills in Muslim Law

on the issue as to whether the Muslim
domicile in Ceylon has power to dispose their property by will, regardless of any
limitation imposed by the Muslim law, the Privy Council concluded that, the
provisions of the Wills Ordinance apply to the will of Muslim testators.
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In , Senevirathne J. held,
that the Adoption of Children Ordinance has not excluded the Muslim from the
provisions of this Ordinance. Hence children adopted under this Ordinance are
entitled to succeed to the intestate estate of their adopting Muslim parents.
Execution of Wills:
Duties of the Notary
[Section 26 (12) of Notaries Ordinance No.2 of1877]
, Sinnethamby J. there had been certain

obvious alterations in a will of the name of one devisee. The alterations were not

attested by the signatures of the notary or the testator and the witnesse. Court held
that the will should not be admitted to probate due to failure of the propounders to
remove the suspicions created by the alterations.
Presence of Witnesses
A strict requirement in law is that, witnesses to a will must be present at the one and
same time at the execution. E.g.: If a will is executed in a room, all the witnesses and
the testator must be present in the same room.
In , one of the attesting witnesses was in an adjoining

room from where he could both see and hear what was going on. It was held that
the will was duly executed within the meaning of the section 3 of the Ordinance
NO.7 of 1840.
It was further held that the validity of the will was not affected by the fact that the
testatrix could not read English but the notary had prepared the will in English and
interpreted it to testatrix in Sinhalese.
Incompetency of Witnesses
If one of the witnesses is incompetent, it is sufficient to render a will invalid, provided
he is one of the witnesses of the minimum number required by law. If there are more
witnesses than necessary, the invalidity does not arise.
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Interpretation of Wills
A last will should be interpreted so as to have effect rather than to be of no avail, and
the provisions, whether ambiguous or clear, must be liberally interpreted according to
what is likely to have been intended.
, following clause contained in a joint will; "in the
event of us both dying without any issue, all our property shall go to the children of
C' as our lawful heirs". The Court held that, the probable intention of the testator
and testatrix was to benefit all the children of C', and not merely those who were
born at the time of the testator's death.
, there was a phrase "bearing
assessment No ..... The Court rejected the entire phrase in view of the said blank
as it was insensible.
Uncertainty of Beneficiaries

Burgher community
was not void on the ground of its being vague.
Uncertainty of the Properties

, De Kretser J. in the interpretation
of a will the paramount rule is to look for the intention of the testator as it is
expressed or implied on the will and the surrounding circumstances. When the
intention is found on the satisfactory evidence, to that must be sacrificed
inconsistent clauses and words.
, the fact that the
construction of a will may give rise to difficulty is not a good ground for refusing to
grant probate.
, De Sampayo J. A deserted his
A devised land to M ,
subject to the condition that after his death mistress shall not marry. In such event,
she shall forfeit all rights to any share of the estate. After the death of the testator
the mistress lived with and married another. Court held that such a condition is
contrary to public policy and therefore void. Accordingly the mistress didn't forfeit
her rights to the property bequeathed to her.
, Wijeyewardene J.
the will described one of the properties devised as "the allotment of land bearing
assessment No. 50 ... mentioned in the schedule" but the schedule referred to the
property as "the undivided half share of the land bearing assessment No. 50 ... "
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Court held that the phrase "mentioned in the schedule" brought in the schedule for
more information of the property giving the boundaries and extent of the property
and not for the purpose of reducing the extent of the devise.
Where a will is silent as to the proper destination of certain liquid assets of the
testator's estate, such residue should be utilized in the first instance for the
payment of testamentary expenses, debts, funeral expenses and estate duty.
Where there are outstanding debts and other liabilities of the estate to be met, it
would be wrong to distribute such residue among the heirs as on intestacy.
Executors:
1. It is customary to charge one or more persons under the name of executors.

2. All persons are eligible who may by law undertake the administration of other
persons' affairs.
3. Executer is at liberty to decline the office.

4. The duties/ obligations of the executer consists of sealing the effects of the
deceased, providing for his funeral, taking of a proper inventory, liquidating
estate, collecting debts, carrying into effect the last will of the testator, paying
the legacies as willed, making clear accounts and statement and giving the
surplus of the Residuary Estate to the heir.
5. Under the Roman Dutch Law, an executor could not;
a. Debar the heirs from the inheritance.
b. Alienate the property of the testator without the consent of the heirs.
Residuary Estate
The assets which ultimately remain out of the estate after;
1. Payment of the testator's debts.
2. Funeral and testamentary expenses.
3. Costs of the administration of the estate.
4. Costs of the administration suit.
5. Payment of the legacies.
Executors De Son Tort

Assumes control of a decedent's property as if he were executor, without legal
authority.
De Sampayo J. stated that a single act
of dealing with the property doesn't constitute the surviving spouse an executor de
son tort.
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Administrators:
Administrators are appointed by the Courts to take charge of intestate estates. Like
executors the administrators also have substantial power to deal with regard to the
property of the estate.
In , it was held that an administrator with
an absolute and unfettered grant of administration can sell immovable property on his
own responsibility.
, such powers were restricted and decided that he
cannot sell immovable property without obtaining special leave from the Court.
It is a duty of the administrator to collect all the debts due to the intestate's estate.
In , Burnside CJ. held that; upon the death of one of the

spouses the entire common estate, vested in the administrator of the deceased for
disposal among the persons legally entitled to individual shares of it.
Powers of Executors and Administrators:
They do not have power to sell the deceased property without a court order. Executer
is merely an agent of the heir.
The administrator cannot be given authority by Court until he receives the Letters of
Administration.
Where an administrator sells a property of the estate, he is bound to defend and
warrant the title of the vendee in the event of any dispute being arisen.
Wills Made Outside the Country:
(Section 5)
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Estates of Persons with Foreign Assets:
Position of the District Court with regard to jurisdiction to grant probate of a last will
which dealt exclusively with movable property abroad.
, Fernando J. taking into
consideration the effect of Section 21 of the and Sections 516
and 518 of the held; the District Court has no
jurisdiction to grant probate of a last will which dealt exclusively with movable
property abroad, and which did not in any way, affect any property in Sri Lanka.
Whilst Wijethunge J. agreed on the said judgement, Shirani Banaranayake J.
pronounced a dissenting judgement relying on the following passage from Shaker on
Code of Civil Procedure (Volume I pp 842);
"Where the contingency happens which has not been anticipated by the framers of the
Civil Procedure Code and therefore no express provision has been made in that behalf,

the Court has inherent power to adopt such procedure, if necessary to invent a
procedure, as may do substantial justice and shorten needless litigation"
In , the said principle had been
followed.
Sealing of Foreign Probates:
Where a probate has been granted by the foreign Court it is bound to presume, that the
will was the will of the testator and had been duly executed.
In , Bonser CJ. this
principle was accepted.
Preferential Rights to Obtain Probate and Letters of Administrations:
Provisions made with regard to the grant of probate or Letters of Administration when
there are conflictive claims;
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(Section 523 of the Civil Procedure Code)
In , Fisher CR. held that, the preferential right

to a grant of Letters of Administration given under section 523 of the Civil Procedure
Code may be claimed by the attorney of a widow who is absent from the Island.
In , Garvin j. held that; where the widow
of a deceased person was a lunatic, her preferential right to administration should be
recognized by granting the letters to the manager of her estate.
In , Akbar J. held that, in an application
for Letters of Administration to the estate of a deceased person, the Court should
grant the order in favour of that person amongst those of the same degree of kindred
(relatives) for whom the majority of the parties interested have expressed preference.

In , Gratiaen J. held that, section
523 of the Civil Procedure Code which confer upon the spouse of a deceased person
a preferential right to the grant of Letters of Administration are applicable only in
cases of intestacy.
Power to Recall, Revoke or Cancel the Probate and Letters of Administration:
Section 537 empowers the District Court to

recall, revoke or cancel probate, letters of administration or certificate of heirship at
any time upon being satisfied that;
1. Events have occurred which render the administration impracticable and
useless.
2. Upon being satisfied that the certificate should not have been issued.
3. That the will ought not to have been held proved.
4. That the grant of probate or of administration ought not to have been made.
Exclusion of a Part of the Estate from a Will:
In , Court held that; if a testator

excludes part of his property from the operation of a will, such property descends to
his heirs ab intestate (intestate succession), and not to the instituted heirs.
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Judicial Settlement:
Chapter LIV of the makes provisions with regard to

judicial settlement of accounts. Section 712 makes provisions for executors or
administrators to present to Court a petition and inventory to discover property setting
forth upon knowledge, or information and belief of the petitioner.
The object of the judicial settlement is that all matters that may arise in the course of
the administration of the estate between the accounting party and the beneficiary
should be dealt with promptly, so that the whole question might be finally wound-up
in those proceedings.
In , Bertram CJ. held that where a complaint is
made against an executor of negligence or waste, it is competent to the Court to
inquire into the matter in a judicial settlement.

Final Accounts:
Provisions are made to file final account in testamentary proceedings. Thus;
(Section 551 of the Civil Procedure Code)
, Court held that when a final account has

been filed in administration proceedings and the estate declared closed, the Court has
no power to reopen the proceedings in order to entertain a claim to share of the estate
on the ground that the claimant is an heir.
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Intestate Succession:
Intestate Succession applies when a person dies without a valid will. His assets will be
distributed among the heirs according to the applicable personal law, which is almost
statute-based. Majority of deceased persons do not make or leave a valid will.
Intestate Succession can be applied on the following circumstances;

is/her will with
reasonableness before his/her death.
The will is invalid.
The will is partly invalid. In this case, except that the inheritance has been
distributed under the availability of the will, the remaining part undistributed
shall comply with the rules of the Intestate Succession.
If the will only concern part of the inheritance, the remaining part unconcerned

shall comply with the rules of the Intestate Succession.
The main issues relating to the Intestate Succession include how to determinate the;
1. Range of successors.
2. Order of succession.
3. Share of successors.
Following relatives of intestate shall be treated as successors.

1. Husband or wife (spouse), concubine.
2. The issue.
3. One parent or both parents.
4. The brothers and sisters of the whole blood.
5. The brothers and sisters of the half blood.
6. The grandparents.
If aforesaid people are out of existence, the residuary estate of the intestate shall
belong to the Government as bona vacantia and the Government may (without
prejudice to any other powers), out of the whole or any part of the property
devolving on it, provide for dependants, whether kindred or not, of the intestate,
and other persons for whom the intestate might reasonably have been expected
to make provision.
The Issue
Usually refers to children of intestate, but it shall include direct descendants of the
child if the intestate died later than the child.
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Legitimate Children
A child born in wedlock. If the child was born before the marriage of parents, he/she
is still regarded as a legitimate child by law.
Posthumous Heirs
Heirs conceived but not yet born when the intestate dies.
Non-marital Children
A child born out of wedlock is considered as an illegitimate child.
Parent or Both Parents

If the intestate is born in the wedlock, then the parties to the valid marriage are
parents of the intestate, and they have the right to inherit.
If the intestate is an adopted child of the valid adaptation, then the adopted
parents have the right to inherit. In this case, the natural parents of the intestate

are not in the position of parents and have not the right to inherit.
Brothers and Sisters

Whole-blooded brothers and sisters - If the brother and sister have the same
parents, they share the same common ancestors and have the right to inherit from
each other.
Half-blooded brothers and sisters - If only one parent in common, are of half-
blooded and have inheritance rights. But their legal hierarchy is lower than that
of whole-blooded brother and sister.
Grand Parents
parents. They
Devolution of Intestate Succession:
amended by ; is
applicable to the estates of those persons who have died after the date of its
proclamation.
(Section 2)
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(Section 3)
(Section 21)
Order of Devolution:
(Section 22)
(Section 23)
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Preferential Rights of the Children
(Section 24)
Provisions are made with regard to devolution of the estate of a deceased when there
are no children or remoter descendants. In such a situation the inheritance of the
deceased goes to;

(Section 25)
(Section 26)
(Section 27)
22
(Section 28)

(Section 29)
(Section 30)
(Section 31)
(Section 32)
23
Illegitimate Children
Only inherit the property of their intestate mother, but not that of their father or that of
the relatives of their mother.
(Section 33)
Dying Intestate without Heirs
(Section 34)

(Section 35)
(Section 36)
Estates of Illegitimate Children:
Earlier the law was that when an illegitimate person died and if his mother is alive, the
entire estate shall devolve on the mother.
, Bonser CJ. a bastard died intestate
before passing the Ordinance No. 15 of l876, leaving his surviving mother and a
brother and a sister. It was held that whether devolution was governed by the law of
North or South Holland, mother was entitled to entire estate to the exclusion of
illegitimate brother and sister.
24
In , Hearne J. held that where an intestate
estate of an illegitimate dies leaving her surviving husband and other illegitimate
children of her mother, her husband was entitled to succeed to the entire estate.
"Succession to illegitimate children, as has been shown earlier illegitimacy in

Kandyan law does not have the same connotation as in other systems of law. An
illegitimate child in Kandyan law succeeds to his mother's estate as the mother makes
no bastard, but he has no right to succeed to his father's estate as they are not members
of the Gedara of the father. For the same reason they did not also succeed to the
father's relative property
- Dr. Thambiah, Sinhala Laws And Customs (pp 220)
-
, full bench Court held that a father of an illegitimate

child has no right of succession to the acquired property of the child. This is based
on Clause 15 of Neethi Niganduwa.
Examples:
1A:
The testator A, specifies in his will that his estate is to be divided among his
descendants in equal shares per-stirpes.
a. A has three children, B, C, and D.
b. B is already dead, but has left two children (grandchildren of A), B1 and B2.
When A's will is executed, under a distribution per stirpes,
c. C and D each receive one-third of the estate, and
d. B1 and B2 each receive one-sixth.
e. B1 and B2constitute one branch of the family, and collectively receive a share
equal to the shares received by C and D as branches.
(figure 1).
1B:
If grandchild B1 had predeceased A, leaving two children B1a and B1b, and
grandchild B2 had also died leaving three children B2a, B2b and B2c, then
distribution per stirpes would give;
a. One-third each to C and D,
b. One-twelfth each to B1a and B1b, who would constitute a branch, and
c. One-eighteenth each to B2a, B2b and B2c.
d. Thus, the B, C, and D branches receive equal shares of the whole estate,
25
e. The B1 and B2 branches receive equal shares of the B branch's share,
f. B1a and B1b receive equal shares of the B1branch's share, and
g. B2a, B2b and B2c receive equal shares of the B2 branch's share.
Per-capita Distribution
Per capita at each generation is an alternative way of distribution, where heirs of the
same generation will each receive the same amount. The estate is divided into equal
shares at the generation closest to the deceased with surviving heirs. The number of
shares is equal to the number of original members either surviving or with surviving
descendants. Each surviving heir of that generation gets a share. The remainder is then
equally divided among the next-generation descendants of the deceased descendants
in the same manner.
2A:
In the first example, children C and D survive, so the estate is divided at their

generation.
a. There were three children, so each surviving child receives one-third.
b. The remainder - B's share - is then divided in the same manner among B's
surviving descendants.
The result is the same as under per stirpes because B's one-third is distributed toB1
and B2 (one-sixth to each).
Figure 2.
Comparison between Per-Stirpes Inheritance and Per-Capita by Generation
Inheritance
a. On the left, each branch receives one third of the estate.
b. On the right, A's only surviving descendant, C, receives one third of the estate.
c. The remaining two thirds are divided among the descendants in the next
generation.
2B:
The per-capita and per-stirpes results would differ if;
a. D also pre-deceased with one child, D1 (figure 2).
b. Under per-stirpes, B1 and B2 would each receive one-sixth (half of B's one-third
share) and;
c. D1 would receive one-third (all of D's one-third share).
Under per capita;

a. The two-thirds remain after one-third share was taken.
26
b. These two-thirds would be divided equally among all three children of B and D.
I.e. each B1, B2, and D1 would all receive two-ninths.
To give the effect indicated in these examples the clause should also include a
provision that no beneficiary being a grandchild or remoter descendant will take
a share if his or her parent is alive and takes a share.
The spouses of the children (that is, spouses of B, C, and D) are not considered.
Spouses are not a part of the branch. Therefore, even if B, C, or D died leaving a
spouse as well as children, all (100%) of the assets pass to the children and
nothing (0%) passes to the spouses of A's children B, C, and D.
From the example above, if A's child B died before A, A's grandchildren B1 and
B2 would each receive half of B's share. Even if B had a living spouse at the
time of A's death, that person would receive nothing from A's estate.

Summary
Assets of a person after death include;

Movable assets- Jewellery, Paintings
Immovable assets - lands
Cash, bank balances, shares
When a person dies, a testamentary case should be filed in the District Court where
the deceased lived in order to distribute the assets he had to the heirs.
Testamentary Actions:
Testate
When a person dies leaving a valid Last Will, it is said that he has died testate.
For the will to be valid it should be in writing, signed by the Testator (deceased),
before a notary and 2 witnesses or if there is no notary, before 5 witnesses.
The person who is named on the Will, who has to administer the property, is called
the Executor and the people who are named on the Will to benefit from the Will
are called the Beneficiaries.
The executor should deposit the Will in the district Court soon after the death of
the testator, when it is found.
Accordingly a testamentary case will be filed and published in newspaper to see
whether there are objections. Once the Will is proved, Court will grant a Probate
27
(authority) to the executor to distribute the assets to the beneficiaries as per the
instructions of the Testator
The Will can only be challenged on the grounds of Fraud, Undue Influence and
mental incapacity.
Intestate
If a person dies without a Will, it is said that he has died intestate.
Spouse, children or a relation should file a testamentary case and the Court will
issue Letters of Administration granting the surviving spouse to distribute
property to the heirs according to law.
Surviving spouse get ½, balance ½ gets equally divided between the children. If a
child has died before, that share will go to the grand children.
If a person has died without children, ½ will go the parents. If one parent is dead
(E.g.: father) that ¼ share will be divided between the brothers and sisters of the
deceased.

Nomination
Banks and other financial Institutions are very strict on the Probate or Letters of
Administration (being Judicial Orders/Judgments of a Court of Law) before they deal
with funds of a deceased customer. If not, they are liable to anyone who later claims
rights to those funds.
- Section 544 of the Civil Procedure (Amendment) Act no 14 of 1993

-
28
Accordingly, the Nominee shall be entitled to claim and be transferred or paid all
the above mentioned assets of the Nominator on his death.
Such a Nomination overrides any provision made in the Last Will of the
Nominator.
- Section 544 (2): Civil Procedure Code states

- Section 544 (5)
Banks and finance companies will freeze assets of a customer (Nominator) on his
death.
If a Nominee exists, none of those assets (other than funds in a current account) will
be paid out without the written orders or consent of such nominee. If not, such
institution will be liable to the Nominee.
Revocation of Nomination:
Nomination may be revoked by the No .

In a joint account if one dies, the nomination automatically becomes invalid. Then
the remaining account holder can make a fresh nomination.
Normally, customers do not insist or ask for the right to nominate. Nomination is
always suggested or advised to customers by the staff of the bank.
Muslim Law Intestate Succession
Succession Mirath belongs to Allah and inheritance comes in the path of Allah.
The death of a person brings about a transfer of most of his rights and obligations
to his heirs and representatives Wuratha.
29
Before the advent of Islam, in Arabia during the period of Jahiliya, the rules of
inheritance excluded women.
The Holy Quran brought in reforms to the pre-Islamic laws which were not
abrogated altogether.
The rules relating to succession is a fusion of the ancient customary
laws of Arabia with the amendments brought in by the Quran and Hadith.
Amendments are summarized as follows:
Husband and wife were made heirs of each other
Female agnates (descendants of the male) were made competent to inherit ½ of
the share assigned to each male (this law of Sharia is criticized as
discrimination against women.
Parents and ascendants were given the right to inherit even where there are
male descendants.
Muslim succession could be either testate or intestate - in which case his heirs will
have to be determined by Court.

The Applicable Law
Muslim intestate succession is completely governed by
which repealed
Muslim Law would differ in content depending on the sect (Sunni:Shaffie
sub-sect or Shiah).
- Section 2: Muslim Intestate Succession Ordinance No 10 of 1931
The Shaffie doctrine is generally applicable, in the absence of evidence to the

contrary.
Shariah law is based on two verses of al-Quran related to inheritance.

1. Mujmal verse explains rights in general.
2. Al-Mufassal verse explains in detail regarding the portions for each of the
beneficiary. It is a guideline in determining the route of heirs, according to the
blood relationship.
30
Impediments to inheritance under Muslim Law
Slaves (no longer relevant)
Illegitimate children- do not inherit from the father as there is no legal blood
relationship.
An illegitimate person may inherit from the mother and from her blood relations
according to Sunni Law.
Under Shia law, no legal relationship is recognised.
Non-Muslims vice versa.
Murderer of the deceased.
Adopted children (no blood relationship)
An important feature of succession, whether testamentary or intestate, under
law, is the general rule of the distribution of the estate per capita and
not per
Example:

A dies leaving three children B, C, and D. C and D survived him and B died earlier,
leaving two children (grandchildren of A) B1 and B2.
Per Stripes When A's property is executed, under a distribution per stripes, C and
D each will receive 1/3rd of the estate, and B1and B2 will each receive 1/6th . B1 and
B2 constitute one branch of the family, and collectively receive a share equal to the
shares received by C and D as branches.
Per Capita C and D will share the estate equally amongst themselves, leaving
nothing for B1 and B2.
Computation of Distribution:
The heirs according to the Muhammadan Law are divided into three classes.
1. Sharers (Zav-il-Furuz)
2. Residuaries or Agnates (Asabah)
3. Distant Kindred or the uterine relations (Zav-il-Arham)
Assigning these classes their respective shares is done in the following manner:
1. Firstly, the Sharers get the Quranic shares they are entitled as shown in Table I
of the Quran.
2. Secondly, if there be any residue after assigning the Sharers, the residuaries
become entitled to certain shares in the manner set out in Table II.
31
3. Thirdly, if there are no Sharers and no Residuaries, the Distant Kindred take
according to Table III.
1. The Sharers (Zav-il-Furuz)
They are altogether twelve in number - four males and eight females.
The four males are:
i. The father - gets 1/6th when the deceased leaves a son or son's son or any other
male line descendant.
ii. The grandfather or lineal male ascendant (when not excluded) - gets the share
of the father i.e. 1/6th.
iii. the uterine brothers (same mother but a different father)
a. When only one, and no child or the child of a son, father or true
grandfather -1/6th.
b. When two or more and no child or the child of a son or father or true
grandfather - 1/3rd.
iv. The husband -

a. When the deceased leaves a child or the child of a son howsoever low -
1/4th.
b. Without them - ½.
The females are:
v. Widow
a. When the deceased has left no child or the child of a son -1/4th.
b. When there is a child or the child of a son-1/8th.
vi. Daughter
a. When only one and no son so as to render a residuary - 1/2.
b. When two or more - 2/3rd.
vii. Son's daughter or the daughter of a lineal male descendant howsoever low
a. When only one and no child or sons daughter: son or other male lineal
descendant - 1/2.
b. When two or more and no child or son's son or other male lineal
descendant-2/3rd.
c. When co-existing with one daughter and no son or son's son or other
male lineal descendant-1/6th.
d. When there are two daughters, the son's daughters are excluded unless
there happens to be with them a lineal male descendant of the same or
lower degree.
e. The son's daughters or the daughters of any lineal male descendant are
excluded by a son or by a lineal male descendant nearer in degree than
themselves.
viii. Mother
32
a. When co-existing with a child of the propositus (the person immediately
concerned) or a child of his or her son, or two or more brothers and
sisters whether consanguine or uterine -1/6th.
b. When not -1/3rd.
ix. True grandmother However high when not excluded by a nearer true female
ancestor-1/6.
x. Full sister
a. When only one and no son or son's son, true grandfather, daughter, son's
daughter or brother -1/2.
b. When two or more and no such excluders - 2/3rd.
xi. Consanguine sister i.e. half sister on the father's side
a. When only one and no excluder as above - 1/2.
b. When one, and co-existing with one full sister -1/6th.
c. When two or more and no such excluder -1/3rd.
xii. Uterine sister i.e. half-sisters on the mother's side Get the same share as

uterine brothers - 1/6th.
On assigning respective shares of the sharers if that total of the shares exceeds
unity, the share of each sharer is proportionally diminished by reducing the
fractional shares to a common denominator and increasing the denominator so as
to make it equal to the sum of numerators.
The portion for a male beneficiary is equivalent to two parts of the female
beneficiary.
Example:
Suppose a man leaves a widow, 3 daughters and his mother. All these persons are
Sharers. 3 daughters get 2/3; the widow gets 1/8 and the mother 1/6.
a. We first give the widow her 1/8 share leaving 7/8.
b. This 7/8 has to be divided between the 3 daughters and the mother in the
proportion of 2/3 to 1/6 i. e. in the proportion of 4/6 to 1/6 i.e. in the proportion
of 4 to 1. Therefore the 3daughters get 4/5 of 7/8 or 7/10 and;
c. The mother gets 1/5 of 7/8 or 7/40. That is to say the widow get 1/8 or 30/240,
the 3 daughters get 7/10 or 168/240 and the mother gets 7/40 or 42/240.
2. Residuaries (Asabah)
This class of heirs take the residue after such of the sharers as are not excluded
have been satisfied. They are divided into three classes:
i. Residuaries in their own right;
ii.
iii. Residuaries together with another.
33
i. Residuaries in their own right - all male relations in the chain of whole
relationship; no females. There are four subclasses:
a. Parts of the deceased, i.e. his sons and grandsons howsoever low.
b. His roots i.e. the ascendants, his father and true grandfather, how high so ever.
c. The offspring of his father viz. full brothers and consanguine brothers and
their lineal male descendants.
d. Parts or offspring of the true grandfather, how high so ever, i.e., lineal male
descendants, however remote, of lineal male ascendants, however remote.
ii. Receiving another's rights - are those females who as sharers are entitled to one-
half or two-thirds and who become residuaries if they co-exist with their brothers.
E.g.: if the heirs of a deceased person are his widow, brother and sister, the widow
will get one-fourth, and of the remaining three-fourths the brother will get two
portions and the sister one portion as residuaries.

Residuary together with another is a female heir who becomes residuary
because of her co-existing with another female heir, for instance, where there is
a sister with a daughter.
If there be no residuary, the residue returns to the sharers by consanguinity
(blood relation) in proportion to their shares. For instance daughters take only
when they co-exist with sons.
Example 1:
A dies leaving a son and a daughter. Keeping in mind the three rules outlined above
and Table I and Table II; According to the first rule we look at the table of sharers.
It will be noticed that the son is not mentioned at all, but the daughter is mentioned
in item vi. But she is not a sharer according to item vi. for she is excluded by the
co-existence of the son. We must therefore look for the solution of the problem at
the second class. A son comes in the first sub-class of the table of residuaries and a
daughter in the second sub-class, as she co-exists with a son. The son and daughter
therefore inherit as residuaries.
Now is the question as to how the estate should be divided between the son and
daughter. The general rule is the rule given in the Quran that each male is to get
double the share of each female of equal rank. The son will therefore get 2/3 and
the daughter 1/3
Example 2:
Suppose A dies leaving two half brothers or sisters of one mother and another
father and one full brother and one full sister. The two half brothers or sisters being
34
uterine brothers or sisters come within items iii and xii of the first class and they
take 1/3 between them. The full sister according to item x is excluded from the
class of sharers owing to the existence of her full brother. One-third is therefore
allotted to the two half brothers or sisters and the balance 2/3 has to be distributed
among the heirs of the second class. A full brother comes in clause (c) of the first
sub-class of residuaries and a full sister come sunder clause (c) of the second sub-
class of residuaries.
The full brother and full sister therefore take the balance 2/3 in the proportion of
two to one, that is- the brother gets 4/9,the sister gets 2/9,the two half-brothers 1/3.
Example 3:
To explain Table II, suppose A dies leaving two daughters and two sisters.
According to item vi. of the table of sharers the two daughters get 2/3. According to
item x. of the same table the full sister is excluded from the table of sharers by the
existence of the daughters. Turning to the second class, i.e., the class of residuaries,

we find the sisters in clause (a) of the third sub-class. The two sisters therefore take
the balance 1/3.The principal rule that must be kept in mind when one is dealing
with residuaries is that the estate must be divided according to the order specified in
the first sub-class of the table of residuaries.
Suppose A dies leaving a son, a father and a brother. The father as a sharer under
item i of the table of sharers will be entitled to 1/6. Neither the son nor the brother
comes in the first class. If we turn to the second class or class of residuaries, we
find the son in clause (a), the father in clause (b) and the brother in clause (c) of the
first sub-class. As already noted each clause of the first sub-class excludes all the
others coming after it. Therefore the son is the only residuary who will inherit. The
shares will be as follows:- father, 1/6 son, 5/6; brother nothing.
3. Distant kindred (Dhauil-arham):

They include the relations who are neither sharers not residuaries; they inherit only
if there are no sharers or residuaries. The distant kindred are divided into four
subclasses:
i. The offspring of the deceased viz
a. The children of daughters and their descendants
b. The children of son's daughters and their descendants howsoever low.
ii. The root of the deceased or his ascendants
a. Male ascendants however remote, in whose line of relations to the deceased
there occurs female and who are therefore called false grandfathers. E.g.:
deceased's mother's father (or a) father's mother's father.
b. Female ancestors technically called false grandmothers.
35
iii. The offspring of his parents viz. the daughters of full brothers and of full
brother's sons, sister's children.
iv. The offspring of grandparents and other ascendants however remote.
a. Daughter of half paternal uncles by the father.
b. Paternal aunts, full consanguine or uterine and their children.
c. Daughters of full paternal uncles and their sons.
d. Maternal uncles and aunts and their children.
e. Paternal uncles by the mother.
The general order of succession is according to their classification, the first class
occupying first and so on.
Among the individuals of the various classes, succession is regulated by
proximity to the deceased, the nearer in degree always excluding the more
remote.

The Doctrine of Aul (Increase):
Sometimes, the sum of fractional shares of several Sharers may add up to greater
than unity (one). Thus, a proportionate abatement in all the shares should be made,
by increasing the common divisor.
Example 1:
A woman dies leaving her husband, two daughters and her mother; they are all
Sharers and their shares are as follows;
Husband 1/4, 2 daughters 2/3, Mother 1/6, 1/4+2/3+1/6 is equivalent to 3+8+2/12 ==
13/12.
Based on doctrine of Aul, the common divisor 12 is increased to13 and the shares are
given as follows;
Husband 3/13, 2 daughters 8/13, Mother 2/13
Example 2:
A woman dies leaving the Husband; a daughter, son s daughters, mother, brothers
and sisters. All these heirs are Sharers except the brothers and sisters, who belong to
the second class. It will be remembered that the existence of a brother or daughter
displaces the sister from the first class to the second. The sharers take as follows:-
Husband ¼, Daughter daughter 1/6, Mother 1/6
These fractions when added amount to 13/12. Here, the brothers and sisters will not
get anything, but even the shares of the Sharers exceed the available estate. The
doctrine of Aul works as follows:-
36
Husband 1/4 = 3/12 reduced to 3/13, daughter 1/2 = 6/12 reduced to 6/13
daughters 1/6 = 2/12 reduced to 2/13, mother 1/6 = 2/12 reduced to 2/13. Total
allocation to Sharers 13/13 = unity. The brothers and sisters will get nothing,
anyway.
The Doctrine of Rudd (Return):
When there are no Residuaries and all are Sharers, any balance left after allotment of
the shares of the Sharers is apportioned amongst them in the proportion of their
shares, excepting in the case of a husband or a wife who only take by return when
there are no other heirs.
Example:
If a woman dies leaving a husband and three daughters, the husband and the three
daughters are Sharers. The husband is entitled to ¼ and the three daughters, to

2/3.There is balance of 1 ¼, - 2/3 or 1/12.
This 1/12 is to be given (as per now repealed Muhammadan Code) to the poor,
which can only mean the three daughters by return. Therefore the shares of the
Sharers are as follows:-
The husband ¼, the three daughters ¾
In (SC), though the word was
argued as Residuaries, de Sampayo J. rejected the argument for the simple reason
that there can be no return if there is a Residuary.
Last Wills:
It is a fundamental principle of the is that; more than a third of an estate

cannot be given to outsiders, i.e. at least two-thirds of the estate should be available
for distribut intestate heirs.
However, in Sri Lanka the confers on any person the freedom
to dispose as he pleases.
In , it was held that the Wills
Ordinance prevails over law.
The Will should be witnessed by 2 men who are known or if there is only one man, 2
women should also witness.
37
Thesawalamai Law Succession
Inheritance under the Jaffna Matrimonial Inheritance Ordinance of 1947 applies to

Tamils who were subject to Thesawalamai Law.
- Section 3 of JMRIO (Amendment) Ordinance No. 58 of 1947

Different Kinds of Property under the Ordinance:
Mudusam
Property descending from parents or ancestor in the ascending line.
- (Section 15)
Urumai
Property derived by descent of any other relation.
Property received in mudusam, urumai or dowry, gift or a last will without monetary
consideration by the father is called as the propert .
Same by the mother is called as the propert .
Thediathetam
a. Property acquired for valuable consideration by either husband or wife during the
subsistence of marriage,
b. Profits arising during the subsistence of the marriage from the property of any
husband or wife.
, property acquired by a wife during the subsistence
of the marriage out of money which formed part of her separate estate is
Thediathetam.
Devolution of Thediattetam Property

On the death of either spouse, one half of property not disposed by Will or otherwise
shall devolve to the surviving spouse and the other half to the heirs of the deceased
spouse.
- (Section 20)
-
38
Subject to the right of the surviving spouse, the property shall devolve in the order of
a) Descendants b) Ascendants c) Collaterals
Children and grandchildren get per capita equally.

If there are no children or no remoter issues, all of the property of the deceased
received from the fathers side and half of the (exclusive of the property received
from the mothers side) other property will devolve onto the father.
Father failing, the said property will devolve unto the full brothers and sisters and
half-brothers and sisters from the side equally.
All of the above failing the said property will devolve to:
i. Paternal grandparents if surviving
ii. Failing, paternal uncles and aunties or their issues
iii. Failing, paternal great grandparents or their brothers and sisters
iv. Failing, to the nearest in the ascending line
If there is no one in the side, the property shall devolve to the mother and

her kindred.
In , a woman subject to Thesavalamai died leaving her
mother and cousins on the father's side. Held that the cousins were entitled to property
derived from the father's side to the exclusion of the mother.
If there are no children or remoter issues, all of the property of the deceased
received from the mothers side and half of the (exclusive of the property received
from the fathers side) other property will devolve onto the mother.
Mother failing, property will devolve unto the full brothers and sisters and half
brothers and sisters from the side equally.
Same priority as before will apply.
In , a married woman died issueless, leaving an

unmarried sister and three brothers. Held that the sister was entitled to succeed to the
dowry property of the intestate to the exclusion of the brothers.
If all the persons above fails, the inheritance goes to the surviving spouse if any
(Section 30).
If a person dies intestate without any heirs, his property will be vested on the state
(Section 30). If there is an heir within the 10th degree, he can claim the
inheritance from the state.
39
Rights of the Illegitimate Children:
Illegitimate children shall inherit the property of the deceased mother, but not that
of the father (Section 34).
When an illegitimate child dies, his property will devolve to the mother and her
heirs to exclude the state (Section 34).
In , a woman of illegitimate birth died intestate leaving
her husband and issueless. Held that; the legitimate issue of the mother of the intestate
was entitled to succeed to her dowry property to the exclusion of her husband.
Cases which are not provided by the ordinance shall be governed by the
Matrimonial Rights and Inheritance Ordinance.

Life Interest:
Surviving spouse shall have the life interest to the property devolved on to the
minors, but would have the liability to maintain such children until they become full
age.
Kandyan Succession Law
Applicability:
,
where a marriage takes place between persons of different race or nationality the
wife became governed by the personal law of the husband during the subsistence of
that marriage.
According to ,
following are governed by Kandyan law;
1. Child of a marriage between a Kandyan man resident in Kandyan Provinces and a
woman not subjected to Kandyan law.
2. Marriage contracted in Binna between a Kandyan woman resident in Kandyan
Province and a man not subjected to Kandyan law.
40
Inheritance:
Aims at preserving the ancestral lands in the hands of the male members of the
family.
In the absence of direct descendants, the rule is that property reverts to the source
from which it came.
Property is classified based on manner entitlement as follows;
1. Daa himi Paternal right
2. Wadaa himi maternal right
3. Lath himi right of acquest
Paraveni property is ancestral property descended by inheritance. Property
derived by any other source of title or by any other means is regarded as acquired
property.
Paraveni Property

This is ancestral property descended by inheritance (
Section 10 .
It includes the property passed by intestate succession due to the death of a
person; gift intervivos from the father; property received by a last will.
However, if the deceased died intestate issueless or descendants, Paraveni
property is considered as acquired property. E.g.: Manikhamy gifted land to his
son Ukkuhamy who gifted to his son Punchi Banda. Punchi Banda died intestate
issueless. Held that the property is acquired property in respect of Punchi Banda.
Child includes a legitimate as well as an illegitimate child. By right of purchase

Puncha was the owner of a certain immovable property. Puncha died leaving his
heir Nanduwa. Nanduwa died leaving the plaintiff, an illegitimate child. Under
Section 10, property would be Paraveni property and would not be considered as
acquired as Nanduwa had a child, illegitimacy is irrelevant.
Rights of the Widow:
When a man dies intestate leaving a widow and children or even issueless, the
widow only has a life interest in the landed estate of the deceased husbands
hereditary as well as acquired property.
Widow losses her rights and life interest by taking a second marriage, contrary to
the wishes of the deceased or by disgraceful conduct or adultery.
41
If such act is proved against the widow by the children, she would be expelled
from the deceased husband house. She will also lose her right to inherit property
of the children in case of their death.
After the enactment of the
Section14, if the man dies after January 1939, the widow does not
lose her life interest once acquired even if she contracted a subsequent marriage in
Diga.
If the acquired property is insufficient the widow is entitled for maintenance from
the Paraveni property until another marriage. If there are children, the widow will
only be entitled to half share of the acquired property. This excludes her
husband illegitimate children.
According to Kandyan Law Declaration and Amendment Ordinance, when a man
dies intestate, surviving spouse is entitled to all the wearing apparel and jewellery
provided by the deceased if there are no children. If there are children she would
get a like share of the movable property.

If a man died intestate without children, parents or a near relation, then the
widower will succeed to the entire estate. If there are no children but had
surviving parents and full brother and children, widow will have an absolute right
to the acquired and Paraveni property of the deceased:
Rights of a Widower:
Diga Widower
He acquired property if there are children.
A property of all description goes to her children and not the
husband.
If issueless, all the property received from her parents reverts to them or brothers
and sisters or their issues.
Husband inherits all the acquired property.
The mother will be entitled to the dowry given to the deceased daughter at her
marriage.
If none of the above exists, the husband will be entitled to the reversion of the
wife including Paraveni Property and acquired property in preference to the
half-sister.
42
Binna Widower
Binna husband does not have any right to the d
inherited or acquired.
He would be entitled to an equal share of the movable property along with the
children.
Rights of Children
Legitimate children inherit the intestate estate of their father in equal shares and
their children and grandchildren by representation.
Paternal inheritance comes in to operation only after the death of the father.
Children rights are unaffected by the divorce of the parents.
A son detaching himself from his family and forming a Binna marriage does not
lose his right of paternal inheritance, but if he neglects in ascertaining his rights
from the father, his children will have a weaker claim for the estate of the
grandfather as the right to the share gets prescribed.

If the Binna married son died before the father leaving a son, the son will be
entitled to that share of the father.
The rights of the Binna married daughter are co-equal with those of the Binna
married son.
If the father died intestate leaving a Binna married daughter, Binna married son
and another daughter married in Diga, the property will devolve equally between
the son and the daughter married in Binna to the exclusion of the daughter married
in Diga.
If the father made special allotment of his land to his daughters in Binna, she will
be debarred from sharing in the residue with her brothers and sisters.
A Binna married daughter is entitled to share equally with her brothers and sisters
land acquired by the father subsequent to the allotment.
Rights of the Children by Different Wives

The property of a man dying intestate leaving issues by different wives will
devolve on his children per stirpes.
Example:
The first wife was divorced pregnant and afterwards delivered a son. Husband has a
daughter from the second marriage. Said son and the daughter would inherit equal
s
43
When a man contracts a second marriage and has duly apportioned his property to
the issue of his first marriage, such children will neither be entitled to a share in
the estate of the parent nor be liable for his debts.
Rights of children by Associated Fathers

The issue of an associated marriage (illegal since 1859) inherit equally with the
half -blood by a former or a subsequent marriage of their father in the father
Paraveni property unless the father has transferred or settled a share of the
property on his first family. In such a situation the second family will get the
whole which the father reserved for himself.
Two brothers had by a joint wife 3 sons, one of the brothers died and the surviving
brother had another son from the same wife. The property of the deceased was
divided between the first 3 sons and the property of the other brother was divided
between all 4 sons.

Children of Different Common Wives
Three brothers married one wife and had a son, after her death they married a
second wife and had 3 sons and a daughter. After the death of the 3 fathers, their
property will be devolved among all 5 children.
Three brothers married one wife and had a daughter. One brother afterwards
married another wife and had a daughter. After the death of this brother, his
property will be divided by 2 and the properties of the other two brothers will
devolve solely to the daughter from the common marriage.
The rights of Illegitimate Children

There is no distinction between and illegitimate child and merely a natural child.
If the child is born to a wife of a low caste, such child was considered as
illegitimate.
If the father is known, the illegitimate child can claim for inheritance from the
father s property but is not entitled to Paraveni property or ancestral property.
However the child can claim for maintenance from the Paraveni property.
The acquired property of any description of a man dying intestate leaving
legitimate and illegitimate children devolves on them per stirpes subject to the life
interest of the widow.
An issue of an incestuous connection cannot inherit property from the father.
Forfeiture of the Right to Paternal Inheritance

The right of inheritance of the property of the father is lost by;
a. Son becoming a priest during the lifetime of the father. If the priest reverts to
the lay state and is accepted by the father, he would become an heir.
44
b. The son will not forfeit his right if he entered priesthood after the death of the
father, is the only child or if the son who is the priest provided support to the
father during illness.
c. A daughter marrying out in Diga who has obtained settlement in the house of
the husband, a Binna married daughter subsequently leaving the parents to live
in the house of the husband also forfeits her rights.
d. A Diga married daughter will not forfeit her right if she was the only child.
e. A daughter marrying a person from a lower caste (disgraceful) or a daughter
being adopted out of the family (a son adopted out of the family would not
forfeit his rights).
Disqualification by Common Law

Persons who have assaulted the parents.
Children who have been discarded from their parents for shameful conduct.
Mental or bodily disabilities do not disqualify from inheritance.

Kandyan Law Declaration and amendment Ordinance No 39 of 1938
Rights of the Widow

When a man dies intestate surviving spouse will be entitled to the life interest
from the acquired property and if there is none or is insufficient can get property
for her maintenance from the income of Paraveni property.
But would lose her right to benefit from Paraveni property if she remarries in
Diga.
If there are no other heirs, surviving spouse would be entitled to all the property.
Succession to Illegitimate Children

Illegitimate children would become legitimate if the parents marry subsequently.
(but would not be so if the children are born in adultery)
No right of inheritance from the Paraveni property.
Subject to the life interest of the surviving spouse;
They may succeed to the acquired property of the deceased, if there are no
legitimate children or their descendants.
They could succeed to the acquired property with equal shares with the legitimate
children, if the deceased had been pronounced the father by a competent court or
if the deceased had registered himself as the father.
Death without Descendants or a Surviving Spouse

Irrespective of the type of marriage;
Would be divided equally between the parents.
45
If only one parent is living, the deceased parent s share will accrue to the brothers
and sisters or their descendants.
If there are no brothers and sisters, such share will accrue to the surviving parent.
If the father is dead the next heir from the father s side would inherit the paternal
Paraveni.
The mother shall not inherit paternal Paraveni unless there is no surviving heir.
If the mother is dead, maternal Paraveni will devolve to the heirs of the mother;
the father shall not inherit maternal Paraveni.
Brothers and sisters inter se inherit as sons and daughters.
Half blood brothers and sisters inherits per capita.
Succession Diga / Binna

When a woman dies unmarried, or married in Diga or married in Binna on her
mother s property shall devolve to all the children equally, (the heirs of the deceased

children would inherit by representation) irrespective of whether the children are
married, unmarried, Binna, Diga, or illegitimate provided if the deceased was
married in Binna and has illegitimate children.
A Woman Married in Binna in Fathers Property

It would devolve on to her children or grandchildren by representation.
If the deceased Binna married daughter has illegitimate children, such child
would not acquire paternal inheritance.
Fidei Commissum
It translates from the Latin word fides (trust) and committere (to commit),
meaning that something is committed to one's trust.
One heir is duly appointed and it is committed to his trust to transfer the
inheritance to another. E.g.: Grandfather appoints, for an interim period, his Son
as an heir acting as fiduciaries entrusted under the condition with passing the
inheritance on to Grandson, the fideicommisarius, upon death.
A burden is laid upon the ownership of property for the benefit of persons
successively entitled.
A prohibition on alienation can only be validly imposed by way of a FC.
46
Requirement for Validity:
What is needed is to;

1. Clearly identify the properties and
2. The person to whom they should devolve
, it was held that no set form of words is necessary for creating

a valid FC. Prohibition on alienation out of the family coupled within a clear
indication of the person to whom the property in the event of alienation is to go over,
constitute a good FC.
Where there is no person is specified to whom the property must go, upon a
breach of the prohibition or in whose favour the prohibition is made, the
prohibition is nude and of no effect.

In I the said donor have
hereby granted and set over unto the said donee as a gift of the lands and have
hereby ordered that the same shall not be sold or mortgages or alienated by the said
donee, but to be held and possessed by them forever after the death of the owner.
Held that it did not create a valid FC.
Express Fidei commissum

One such as that created by a gift to A for life and on A's death to B.
Tacit fidei commissum

Where the prohibition on alienation by the fiduciary is not expressly declared by the
testator but is implied by law. If the testator has used a vague term such as, I hope, It
is my desire, there is no certain intention to create a fidei commissum, however the
court will look at the surrounding circumstances and if there is sufficient evidence to
ascertain intention, would imply one.
Prohibition against Alienation:
A FC is not created by a mere prohibition against alienation, unless the

prohibition be against alienation out of the family.
Fidei Commissum property cannot be alienated except to pay the debts of the
testator, only if no other funds exist.
47
Such property cannot be alienated even to pay taxes, without obtaining the
sanction of the court.
If the fiduciary makes improvements or incur an expenditure to restore the
property he will be entitled to restoration by the beneficiaries.
The Difference between a Trust and a Fidei Commissum

In a trust, the interest of the trustee and the beneficiary co-exist in time. Trustee
has no beneficial interest, only the dominium.
In a FC the interests are successive; the fiduciary has a beneficial interest and the
dominium as well.
Ending of Fidei Commissum:

By failure of the condition upon which is made
When the person in expectancy becomes incapable or disqualified to take
Death of the fidei commissary before the fiduciary
By the perishing of the trust property without the fault of the heir
By the express renunciation of the party in expectancy
In the case of the heir charged with a trust dies before the testator, and thus the
appointment of heir itself fails
By a release from the trust which can only be obtained from the sovereign
Abolition of Fidei Commissum:
By the
the law relating to Fidei Commisum, settlements, and restraints on
alienation was abolished with effect from 12 May 1972.
Where a property subject to a fidei Commissum has been transferred, sold or
donated prior to the commencement of this Act , such property will vest on the
tranfaree free from the fidei Commissum (Section 7)
48
Law on Trusts
Trust is an obligation annexed to the ownership of property, and arising out of a

confidence reposed in and accepted by the owner, for the benefit of another person,
of such a character that, while the ownership is nominally vested in the owner, the
right to the beneficial enjoyment of the property is vested in such other person.
Terminology:
Settlor the person who reposes the confidence is called the
Trustee the person who accepts the confidence
Beneficiary the person for whose benefit the confidence is accepted
Trust property the subject matter of the Trust
Beneficial interest ainst the Trustee as

owner of the Trust property
Instrument of Trust the instrument, if any, by which the Trust is declared
Creation of Trusts:
A Trust is created when the author of the Trust indicates with reasonable certainty by
any words or acts;
a. An intention on his part to create a Trust
b. The purpose of the Trust
c. The beneficiary
d. The Trust property
A Trust may be created for any lawful purpose.

Trust of Immovable property can only be made by a Will or an instrument which
is notarially executed.
49

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Introduction

(Questions not included)

Compiled by: Vijitha Karunatilleke

Compiled by: Vijitha Karunatilleke

The Wills Ordinance No 21 of 1844:

, the last will was executed

Compiled by: Vijitha Karunatilleke

Capacity to make a Will:

[The Wills (Amendment) Act, No. 5 of 1993 - Section 3]

Compiled by: Vijitha Karunatilleke

Following persons are disqualified:

One or more persons would be named as heir or heirs.

Compiled by: Vijitha Karunatilleke

Wills of Soldiers and Sailors

Compiled by: Vijitha Karunatilleke

, a codicil must be read with the will, and the will

(Section 6 - Wills Ordinance No. 21 of 1844)

A last will may be revoked under the following circumstances.

Compiled by: Vijitha Karunatilleke

No testamentary instrument can be revoked by implication.

Prevention of Frauds Ordinance, make specific provisions in relation to revocation of a

Compiled by: Vijitha Karunatilleke

, a will can be revoked only in one of the

Presumption of Due Execution

Compiled by: Vijitha Karunatilleke

In Re , Bonser CJ. the

Compiled by: Vijitha Karunatilleke

When there is a written memorandum in a will stating, th

Compiled by: Vijitha Karunatilleke

Wills in Muslim Law

Duties of the Notary

[Section 26 (12) of Notaries Ordinance No.2 of1877]

, Sinnethamby J. there had been certain

Compiled by: Vijitha Karunatilleke

In , one of the attesting witnesses was in an adjoining

Compiled by: Vijitha Karunatilleke

Uncertainty of the Properties

1. It is customary to charge one or more persons under the name of executors.

Compiled by: Vijitha Karunatilleke

Executors De Son Tort

Compiled by: Vijitha Karunatilleke

Powers of Executors and Administrators:

Wills Made Outside the Country:

Compiled by: Vijitha Karunatilleke

Sealing of Foreign Probates:

Preferential Rights to Obtain Probate and Letters of Administrations:

In , Fisher CR. held that, the preferential right

Compiled by: Vijitha Karunatilleke

Power to Recall, Revoke or Cancel the Probate and Letters of Administration:

Section 537 empowers the District Court to

Exclusion of a Part of the Estate from a Will:

In , Court held that; if a testator

Chapter LIV of the makes provisions with regard to

Compiled by: Vijitha Karunatilleke

Provisions are made to file final account in testamentary proceedings. Thus;

(Section 551 of the Civil Procedure Code)

, Court held that when a final account has

Intestate Succession can be applied on the following circumstances;

Compiled by: Vijitha Karunatilleke

Following relatives of intestate shall be treated as successors.

Parent or Both Parents

Compiled by: Vijitha Karunatilleke

Brothers and Sisters