Foreign nationals and Sri Lankans living abroad tend to arrive at the same two questions. Does the will I made at home cover the house in Colombo or the land in Galle? And if I never made one, who gets it?
The answers are in three statutes, two of which were amended in 2022. What follows is the general law. Kandyan law, Muslim law and the Tesawalamai each displace parts of it, and which body of law applies is a question that has to be settled before any of the rest is useful.
Who may make a will, and who may be left out
Section 2 of the Wills Ordinance was substituted in its entirety by Act No. 29 of 2022. It is now lawful for any person who has reached the age of eighteen years, and who is residing within or outside Sri Lanka, to execute a will disposing of any movable and immovable property and every estate, right, share or interest in property belonging to that person at the time of death.
Section 2(2) then puts testamentary freedom beyond argument. Every testator has full power to make such testamentary disposition as he feels disposed, and in the exercise of that right to exclude any child, parent, relative or descendant, or to disinherit or omit to mention any such person, without assigning any reason, any law, usage or custom to the contrary notwithstanding.
That closing phrase is doing real work. Under the general law as it now stands there is no forced share to be worked around.
Executing a will in Sri Lanka: what changed in 2022
The formalities are not in the Wills Ordinance. They are in section 4 of the Prevention of Frauds Ordinance, and Act No. 30 of 2022 rewrote them.
Section 4(1) provides that no will, testament or codicil containing any devise of land or other immovable property, or any bequest of movable property, or for any other purpose whatsoever, is valid unless it is in writing and executed subject to subsection (2).
Subsection (2), inserted by section 3(3) of Act No. 30 of 2022, requires the testator to sign and to affix his left or right thumb impression, at the foot or end of the will, before a notary public and two witnesses who shall be present at the same time. Where the thumb impression cannot be obtained, the testator affixes another finger impression or a toe impression.
The thumb impression is a condition of validity, not a flourish. A will drawn on an older precedent, signed but not marked, is exposed on the face of the instrument.
Marriage revokes a will
Section 6 of the same Ordinance sets out the only ways a will can be revoked, and the first of them catches people out.
No will, testament or codicil, or any part of one, shall be revoked otherwise than by the marriage of the testator or testatrix, or by another will or codicil executed in the manner required, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by burning, tearing or otherwise destroying it with the intention of revoking it.
A client who makes a will and later marries does not have a will with a stale beneficiary. That client has no will at all, and the estate falls to be distributed on intestacy. It is the single most common way a carefully drafted instrument is quietly destroyed.
Alterations after execution
Section 7 provides that no obliteration, interlineation or other alteration made after execution is valid, except so far as the words before the alteration are not apparent, unless the alteration is executed in the same manner as a will. The signature and thumb impression of the testator and the subscription of the witnesses must appear in the margin or some other part of the will opposite or near the alteration.
In practice, a codicil is safer than an amendment on the face of the document.
The foreign will
This is the provision most often needed and least often cited. Section 5 of the Wills Ordinance deals with the validity of foreign wills, and it does two distinct things.
For immovable property in Sri Lanka: every will made beyond the limits of Sri Lanka containing a devise or disposition of immovable property situate within Sri Lanka, which has been duly made and executed according to and in conformity with the forms and solemnities prescribed by the law of the country where it was made and executed, by a person who by the law of that country or of Sri Lanka is competent to make a will, is valid and effectual to alienate and pass that property.
For movable property: a will duly made and executed in that manner outside Sri Lanka, by a person competent to make a will by the law of the place where he was domiciled at the time of making it, is valid and effectual to pass the movable property bequeathed by it.
The section then closes with the words that matter: anything contained in the Prevention of Frauds Ordinance or any other law or custom to the contrary notwithstanding.
So the notarial attestation and the thumb impression required of a Sri Lankan will are displaced for a will properly made abroad. An English will executed with two witnesses under the Wills Act 1837, or an Australian will executed under the relevant State legislation, can carry a house in Colombo.
Being valid is not the same as being administered, and that is a separate exercise dealt with below.
Jointly held land does not pass to the survivor
Section 7(1) of the Wills Ordinance is a declaratory provision of considerable practical importance to foreign couples buying property here.
All landed property situated in Sri Lanka belonging to two or more persons jointly, whether it came to them by grant, purchase, descent or otherwise, is deemed to be held by them in common. On the death of one of them the property does not remain or belong to the survivor. The right, share and interest of the person dying forms part of his estate.
There is no joint tenancy with survivorship of the kind that operates in England or Australia. A couple who buy in both names and assume the survivor simply takes the whole are wrong, and the deceased's half share will have to be administered like any other asset.
If there is no will
Intestate succession under the general law is governed by the Matrimonial Rights and Inheritance Ordinance. Section 2 marks out its limits: save for the case of intermarriage that the section deals with, the Ordinance does not apply to Kandyans or Muslims, or to Tamils of the Northern Province who are or may become subject to the Tesawalamai.
Within its scope, the Ordinance provides that inheritance to immovable property in Sri Lanka is governed by the Ordinance, that the surviving spouse inherits one half, and that children have a preferential right in the devolution of the remainder. Where no heir can be found the estate escheats to the State, and section 36 provides that the rules of Roman-Dutch law as it prevailed in North Holland are followed where the Ordinance is silent.
The precise devolution of the half not taken by the spouse depends on which relatives survive, and the Ordinance works through those cases across sections 23 to 33. It is not a calculation to attempt from a summary.
The general point stands on its own, though. An intestate estate here is divided by a statute of 1876 supplemented by seventeenth-century Dutch law, applied to whichever body of personal law governs the deceased. It is a poor substitute for a will.
Administering the estate, and resealing a foreign grant
Where a grant of probate or letters of administration has already been made abroad, it does not have to be duplicated from scratch. Chapter XXXVIIIB of the Civil Procedure Code deals with foreign probates.
Section 554U provides that where a Court of Probate or other authority in a foreign country has granted probate or letters of administration in respect of the estate of a deceased person, whether before or after 15 December 1977, the grant may, on being produced to and a copy deposited with a competent court, be sealed with the seal of that court. On being sealed it has the like force and effect, and the same operation in Sri Lanka, as if it had been granted by that court.
Section 554V sets out what the court must be satisfied of before sealing:
- that testamentary duty has been paid or secured in respect of so much of the estate as is liable to testamentary duty in Sri Lanka
- in the case of letters of administration, that security has been given in a sum sufficient to cover the property in Sri Lanka to which the letters relate
The court may also require such evidence as it thinks fit as to the domicile of the deceased. Section 554W allows the court, on the application of any creditor, to require adequate security before sealing for the payment of debts due to creditors residing in Sri Lanka.
Section 554Y then makes clear what resealing does not do. It does not relieve the executor or administrator of the duty to file, within the time appointed by the court, an inventory of the deceased's property and effects situated in Sri Lanka with a valuation, as required by section 538; nor of the duty to file, on or before the expiration of twelve months from the date of sealing, a true and final account of the executorship as regards the property in Sri Lanka, verified on oath, with receipts and vouchers attached, as required by section 553; nor of liability to be compelled to make a judicial settlement of account.
That twelve-month period runs from the sealing, and it is the date to record when the grant is resealed.
What this comes to in practice
- Establish which body of law governs the deceased or the testator before anything else. The general law, Kandyan law, Muslim law and the Tesawalamai produce different answers.
- If there is a foreign will, check that it was executed in conformity with the law of the country where it was made. If it was, section 5 of the Wills Ordinance does the work and a separate Sri Lankan will may be unnecessary.
- If a will is to be made here, ensure the thumb impression is taken as well as the signature, before a notary and two witnesses present at the same time.
- Treat any marriage after the date of the will as having revoked it, and make a new one.
- Do not assume that property in joint names passes to the survivor. It does not.
- Where a grant has been obtained abroad, consider resealing under Chapter XXXVIIIB rather than starting fresh proceedings, and diarise the twelve months for the final account.
A short will, properly executed, avoids nearly all of this. The cost of not having one falls on the family, and it falls at the worst possible time.
