Law of Succession. Explained slidespdf.pdf

Succession law

1. LAW OF SUCCESSION

2. IMPORTANT TERMINOLOGIES
•Inheritance/ succession
•Devolution of property
•Paternal property & maternal property
•Patrilineal & matrilineal inheritance & bilateral inheritance
•Heirs/ successors
•Descendants, ascendants, & collaterals
•Illegitimate/ extra-marital child

3. INHERITANCE OF PROPERTY
Property
Testate succession
Intestate succession
Wills Ordinance No.21 of
1844
Matrimonial Rights & Inheritance
Ordinance No. 15 of 1876
KandyanLaw Declaration & Amendment
Ordinance No. 39 of 1938
Matrimonial Rights & Inheritance
Ordinance (Jaffna) No.1 of 1911
Muslim Intestate Succession Ordinance
No.10 of 1931(permits the application of
the law of the Sect

4. TESTATE SUCCESSION
•Historical background on testate succession in Sri Lanka
•How British colonisersmodified/ transformed the traditional practices on
inheritance?
•Wills Ordinance –Influence of English Law Principles
•Requirement for the execution of a valid will
•The scope of the Ordinance –section 2
•Wills Ordinance v. Special laws

5. WILLS ORDINANCE NO. 15 OF 1876
•Section 2: It shall be lawful for every person competent to make a will to
devise, bequeath, and dispose of by will all the property within Sri Lanka
which at the time of his death shall belong to him, or to which he shall be
then entitled, of whatsoever nature or description the same may be,
movable or immovable, and all and every estate, right, share, or interest in
any property, and which if not so devised, bequeathed, or disposed of
would devolve upon his heirs-at-law, executor, or administrator, to such
person or persons not legally incapacitated from taking the same, as he
shall see fit ;

6. SECTION 2 CONTINUES
•and no will made either within or beyond the limits of Sri Lanka
subsequently to the time when this Ordinance shall commence and take
effect shall be or be liable to be set aside as invalid or inofficious, either
wholly or in part, by reason that any person who by any law, usage, or
custom now or at any time heretofore in force within Sri Lanka, would be
entitled to a share or portion of the property of the testator, has been
excluded from such share or portion, or wholly disinherited by or omitted
in such will;

7. SECTION 2 CONTINUES
•but every testator shall have full power to make such testamentary
disposition as he shall feel disposed, and in the exercise of such right to
exclude from the legitimate or other portion any child, parent, relative, or
descendant, or to disinherit or omit to mention any such person, without
assigning any reason for such exclusion, disinheritance, or omission, any
law, usage, or custom now or heretofore in force in Sri Lanka to the
contrary notwithstanding :

8. SECTION 2 CONTINUES
•Provided that nothingherein contained shall extend or be construed to
extend to authorize or entitle any testator to dispose by will of any
property or estate of his wife,or to exclude or deprive her of any life or
other interest (belonging to her in her own right) in any property, and to
which property, estate, or interest she would have been entitled if this
Ordinance had not been passed.

9. REQUIREMENTS FOR A VALID LAST WILL
•Section 4 of the Prevention of Fraud Ordinance
•Must be in writing –exception under the Muslim Law
•Signed by the testator, notary, and 2 witnesses –otherwise the testator with 5 witnesses in
the absence of a notary
•Attested by the notary
•Section 2 of the Wills Ordinance
•Every person competent to make a will
•Property-movable/ immovable
•Can be made within/ beyond the limit of Sri Lanka
•Testator can dispose the property by the last will to his heirs, children, parents, relatives or
anyone

10. •Pererav. Perera–Signature may be in any language. Even a thumb impression/ a cross by
the testator and specified by the notary so in his attestation is sufficient.
•Ibrahim Usoofv. PackeerBawa-A signature placed at the end of the document in a blank
space opposite the attestation clause was held as valid.
•IbrahmNainav. Kosummaet.al.-Testator and the Notary were in the same room and the
witnesses were siting in the varandhawhere they were able to see what was happening
in the room. It was held that the document was executed in the presence of testator,
notary, and the witnesses.

11. WHO CAN MAKE A WILL
•Section 3 -No will made by any person under the age of eighteen years, shall be valid,
unless such person shall have obtained letters of veniaaetatisor unless such person shall
have been lawfully married.
•Under the RDL, the following persons are not competent to make a will:
•Minors under the age of puberty [Tregeav. Godari]
•Persons mentally incapable [Ratnayakev. Chandratilleke]
•Interdicted prodigals [ re Rodrigo]

12. WHO MAY TAKE UNDER A WILL
•Under the Wills Ordinance –any person who is not legally incapacitated from taking a
will
•Under the RDL –an person whether native or foreigner, individual whether born or
unborn or corporate may take under a will
•Under the EL –person who had exercised undue influence on the testator, curators,
administrators, & tutors of minors, person married without the consent of the parents or
guardians, person who is in adulterous union, or who has committed adultery or incest,
surviving spouse, attesting notary, or a person who wrote a will for the testator, &
spiritual persons are prohibited to take under a will.

13. WHO MAY TAKE UNDER A WILL
•An executor/ administrator has the duty to discharge of a fiduciary nature towards the
beneficiaries under the will and they have to protect the interest of the property –
Thomas v. Allen
•Illegitimate children has no right to inherit their parents’ property except by way of will –
Karonchihamyv. Angohamy
•Attesting witnesses cannot take the benefits under the will

14. WHAT MAY BE DISPOSED UNDER A WILL
•Section 2 of the Wills Ordinance –all the property … which belong to the testator at
the time of his/ her death or which shall then be entitled to him or her in future…
movable/ immovable and all every estate, rights, share or interest in any property
•Section 4 of the PFO –land / other immovable property or any bequest of movable
property
•General legacy/ specific legacy –Dharmasiriv. RosalinPerera& Others
•Residuary estate –Sinnathuraiv. Aitken

15. OTHER REQUIREMENTS UNDER THE WILLS
ORDINANCE
•Section 5 –validity of foreign wills
•Section 6 –validity of the wills re-executed or republished, or revived by any codicil.
•Section 7 -survivorship as to property undivided held in shares, if expressly stipulated
for.
•Section 8 -effect of previous settlement. -Repealed

16. OTHER REQUIREMENTS UNDER THE P.F.O.
•Section 6 –revocation of a will
•Section 7 –alterations made in a will
•Section 8 –no will revoked to be revived otherwise than by re-execution or a codicil to
revive it.
•Section 9 –wills need not be published
•Section 10 –wills not to be void on account of incompetency of attesting witnesses
•Section 11 –gifts to an attesting witnesses to be void
•Section 14 –exception given to soldier, mariner, and seaman

17. REVOCATION OF WILLS
Section 6 of the PFO:
•By a subsequent will
•By a declaration with an intention to revoke
•By destruction of the will with the intention (animus revocandi)
•By subsequent marriage of the testator/ testatrix

18. MAKING OF A SUBSEQUENT WILL
•Under Roman Law a latter will revokes an earlier will
•Under the RDL, a latter will can revoke a earlier will only if the subsequent will clearly and
distinctly revokes the former. Thus the earlier will have the effect to the extent of its
consistency with the subsequent will.
•Appuhamyv. Perera–Testamentary instruments can be revoked by implication –testator
intended to revoke the will and codicil. But, he by mistake destroyed only the will. Held-will is
revoked and not the codicil.
•Section 6 of the PFO –revocation of a will shall be in writing by making of another will
declaring an intention to revoke the former.

19. DESTRUCTION OF A WILL WITH ANIMUS
REVOCANDI
•By burning, tearing, or otherwise. Destruction should be done by the testator himself or
by some other person in the presence and direction of the testator.
•Velmuruguv. Arumugam–a will can be revoked with the intention of revoking the same.
•Reed v. Harris –while the testator threw the will into the fire, the servant snatched and
picked it. The servant promised to burnt it and threw some other papers into the fire.
held –will was not revoked.
•Raliyaummav. Mohamed –the petitioner produced the protocol of the will and not the
original. Held-if a will was in possession of the testator and is not forthcoming at the
death of the testator, there would be a presumption that the will had been revoked by
the testator with animus revocandi.

20. DESTRUCTION OF A WILL WITH ANIMUS
REVOCANDI
•Weerasighev. Nagahawatte–where the circumstances are giving rise to the presumption
that the destruction with animus revocandiis absent, the content of the will can be
proved by secondary evidence or production of the draft of the will.
•Fonsekav. Candappa–tearing up of the last will shall not serve to revive an earlier will
made by the testator.
•Obliteration by erasure, pasting over or inking would amount to be the destruction with
animus revocandi.

21. BY SUBSEQUENT MARRIAGE
•Mary Nona v. Edward Silva –the subsequent marriage of the one of the spouses revoke
the joint last will
•Re Muppu–the will executed before the marriage do not apply to the joint estate of the
deceased and hence the surviving spouse is entitled to get the benefits arising from the
joint estate.

22. DESTRUCTION OF A WILL BY UNDUE INFLUENCE
•Primary ingredient for undue influence is coercion[Gray v. Krester]
•If there is any undue influence, that has to be proved
•A duress had not been established in tearing up of a last will [Fonsekav. Candappa]
•Offering alcoholic drink to induce the person to sign the will does not amount to be
undue influence [ Ratnayakev. Chandratillake]