Introduction

This article seeks to explain the law and procedure relating to testamentary actions in Sri Lanka. In practice, many junior practitioners encounter difficulties in understanding the correct procedure applicable to testamentary proceedings, particularly in relation to Probate, Letters of Administration, Certificates of Heirship, objections, caveats, inventories, and final accounts. This article provides a consolidated overview of the substantive law and procedural framework governing testamentary matters under Sri Lankan law.

Nature of Testamentary Proceedings

A person may die either:

1. Leaving a Last Will (testate succession), or
2. Without leaving a Last Will (intestate succession).

The legal consequences and procedure applicable differ depending on whether the deceased left a valid Last Will.

Dying with a Last Will

Under Section 3 of the Wills Ordinance No. 21 of 1844 as amended by Act No. 05 of 1993, every person has the right to make a Last Will except:

1. Persons who, by reason of mental or bodily infirmity, are deprived of control and administration of their property.
2. Persons who are mentally deficient from birth.
3. Persons under eighteen years of age unless they have obtained Letters of Venia Aetatis or are lawfully married.

Types of Last Wills

Last Wills are generally executed in two forms:

1. Wills executed before a Notary.
2. Wills executed before five or more witnesses.

Under Section 4 of the Prevention of Frauds Ordinance, no devise or bequest of movable or immovable property is valid unless the will is in writing and executed according to the procedure prescribed by law.

Where a deceased person leaves a Last Will but omits certain properties from the will, such omitted properties devolve according to the ordinary law of succession applicable to the deceased.

Revocation of Wills

A Last Will once executed may be revoked only:

1. By executing a fresh Last Will, or
2. By a written declaration expressing an intention to revoke the earlier will.

Further, a marriage subsequent to the execution of a Last Will automatically revokes the will in terms of Section 6 of the Prevention of Frauds Ordinance.

Codicils

A codicil is an addition or supplement to an existing Last Will. It must comply with the same legal formalities applicable to the execution of a Last Will. A codicil is essentially an amendment or attachment to an existing will and ordinarily contains reference to the original Last Will.

Dying without a Last Will

Where a person dies intestate, the law applicable depends on the personal law governing the deceased.

Applicable Laws

1. For low-country Sinhalese, domiciled Europeans, and Burghers, the Matrimonial Rights and Inheritance Ordinance applies.
2. Where the Ordinance is silent, Roman-Dutch Law prevailing in North Holland applies in terms of Section 36 of the Matrimonial Rights and Inheritance Ordinance.
3. For Muslims, the applicable law is the Mohammedan Law supplemented by the Code of Mohammedan Law.
4. For Jaffna Tamils, Thesawalamai Law applies.
5. For Kandyan persons dying intestate after 8 September 1939, Sections 11–23 of Kandyan Law Ordinance No. 39 of 1938 apply.

Laws Governing Testamentary Matters

The principal laws governing testamentary actions are:

1. Last Wills Ordinance
2. Prevention of Frauds Ordinance
3. Registration of Documents Ordinance
4. Matrimonial Rights and Inheritance Ordinance
5. Mohammedan Law
6. Thesawalamai Law
7. Kandyan Law Ordinance No. 39 of 1938
8. Civil Procedure Code

Procedure Applicable to Testamentary Actions

The testamentary procedure originally contained in Chapter XXXVIII of the Civil Procedure Code was repealed and replaced by Chapter XXXVIII introduced through Civil Procedure Code Amendment Act No. 14 of 1993, which came into operation on 1 September 1993.

The procedure applicable to testamentary actions is broadly divided into:

1. Procedure applicable to testate estates (estates with Last Wills).
2. Procedure applicable to intestate estates (estates without Last Wills).

Under testate estates, applications may be made for Probate or Letters of Administration with the Will annexed.

Under intestate estates, applications may be made for Letters of Administration or Certificates of Heirship.

It is essential to determine at the outset which application is appropriate in the circumstances.

Testate Estates

Where a person dies leaving a Last Will, the applicable procedure is governed by Sections 516 to 524 of the Civil Procedure Code.

Under Section 516 of the Civil Procedure Code, any person finding a Last Will in Sri Lanka must deposit the will in the relevant District Court within three months of the death of the testator or within the jurisdiction where the finder resides.

In practice, however, Last Wills are frequently produced directly to Court under Section 517 when applying for Probate.

Where a valid Last Will exists, either Probate or Letters of Administration with the Will annexed may be obtained.

Probate

Who May Apply for Probate?

Only the executor appointed under the Last Will is entitled to apply for Probate.

Requirements for Probate

The following requirements must be satisfied:

1. The Last Will must affect movable or immovable property situated in Sri Lanka.
2. The application must be made by the executor appointed under the Last Will.
3. Jurisdiction lies:
   • where the testator resided at the time of death; or
   • where the executor resides; or
   • where any property belonging to the estate is situated.
4. The application should be filed within three months of discovering the Last Will.

Letters of Administration and Certificates of Heirship

In applications for Letters of Administration or Certificates of Heirship, all legal heirs must be made parties to the proceedings and the contents of the petition must be supported by affidavit.

Where the petitioner believes that the application will not be opposed, such fact must be stated in the affidavit in terms of Section 528(2) of the Civil Procedure Code.

There is no legal provision permitting heirs to be omitted as respondents in intestate proceedings. Accordingly, written consent of respondents should be tendered with the petition.

Although the law does not require the petitioner to prepare publication notices in Sinhala, Tamil, and English together with the petition, publication costs must be tendered. In practice, however, notices are generally filed together with the papers.

Upon filing an application under Section 524 or Section 528, Court will nominate dates for publication, objections, and inquiry and forward notices for publication under Section 529(2) of the Civil Procedure Code.

Objections under Section 529(3)

Objections under Section 529(3) of the Civil Procedure Code are limited to:

1. Declaring any will proved.
2. Granting Probate or Letters of Administration with or without the Will annexed.
3. Issuing a Certificate of Heirship.

Objections supported by affidavit must be filed on or before the date specified in the published notice under Section 529(4).

At the inquiry, the objector must rebut the averments contained in the petition in terms of Section 534(b) of the Civil Procedure Code. If satisfied, Court may dismiss the petition, issue letters to the objector, or make appropriate orders under Sections 534(c) and (d).

Caveats – Section 536 of the Civil Procedure Code

Section 529(3) and Section 536 provide for two separate procedures.

A caveat may be filed:

1. At any time before the final hearing.
2. By any person interested in the will or estate of the deceased.
3. By a person not already named in the petition.

The caveator may intervene in the proceedings and seek permission to file objections under Section 536.

Following inquiry, where Court is satisfied that the caveator’s claim is valid, the Court may recall Letters of Probate, Letters of Administration, or Certificates of Heirship already issued under Section 537 of the Civil Procedure Code.

If no objections are raised to the application under Sections 524 or 528, Court may issue letters to the petitioner.

Unlimited and Limited Grants

Once unlimited letters are issued under Section 539(1), the petitioner must tender the following documents to Court:

1. Formal written order in terms of Form 85 of the Civil Procedure Code.
2. Letters of Administration, Probate, or Certificates of Heirship.
3. Oath of Office.
4. Inventory.

Where respondents are named in the caption, their consent must be obtained for the issuance of letters and filing of inventory.

Limited letters may be issued in the following circumstances:

1. Where the original Last Will is lost and only a copy is available.
2. Where no proper copy exists but a draft will or evidence establishes the contents of the Last Will.
3. Where the original Last Will is overseas and only a copy is available.
4. Where the executor resides abroad and acts through a Power of Attorney.
5. Where the executor is outside Sri Lanka and an attorney, legatee, heir, or guardian makes temporary application.

Inventories and Citation Proceedings

After letters are issued, the petitioner must file an inventory of the estate within one month under Section 539.

Where monies, shares, debentures, or movable assets belonging to the estate are withheld, the petitioner may move Court under Section 712 supported by affidavit seeking citation against the person withholding such property.

The procedure relating to citation inquiries is governed by Sections 712–722 of the Civil Procedure Code.

Final Accounts

Any person granted Probate or Letters of Administration must, within twelve months of the grant, file final accounts verified by oath or affirmation together with receipts and vouchers and pay into Court monies collected in the course of administration.

This requirement is imposed under Section 551 of the Civil Procedure Code.

Parties may by consent dispense with filing final accounts, although stamp duty payable on final accounts must still be paid to Court.

The petitioner is under a duty to bring all monies belonging to the estate to the credit of the case and file final accounts. Upon filing final accounts, testamentary proceedings come to an end.

Case Law Relating to Testamentary Matters

Bank of Ceylon v. Upali Dias (1982) 2 SLR 732

The Bank correctly refused to disclose information or release funds belonging to a deceased customer until Probate or Letters of Administration were obtained.

Peiris v. Wilbert (59 NLR 245)

Sri Lankan Courts adopted English legal principles requiring proof that a will was properly executed by a free and capable testator.

Arnolis v. Silva (22 NLR 4)

The Supreme Court held that the mental competency of the testator and approval of the contents of the will must be established. A will obtained through undue influence may be invalidated.

Alcim Will Case (20 NLR 481)

Fraud or undue influence may invalidate a will.

Arulumpikai v. Thambu (46 NLR 451)

Considered the principles governing proof of validity of Last Wills.

Fernando v. De Silva (2002) 2 SLR 121
De Silva v. Seneviratne (1981) 2 SLR 7
Wijewardane v. De Zoysa (2002) 1 SLR 50
Anantha Thurai v. S. Kanagaratnam (50 NLR 361)
Gunawardane v. Cabral (1980) 2 SLR 20

These cases discuss the circumstances under which a Last Will may be considered suspicious and the evidentiary requirements necessary to establish validity.

Perera v. Crickenburg (10 NLR 119)

The inventory should be filed only after letters are issued.

Thisera v. Gunathilake Hamine (13 NLR 261)

Probate already issued may be recalled only upon an application under Section 536 of the Civil Procedure Code.

Conclusion

The law relating to testamentary actions in Sri Lanka is a combination of substantive succession law and detailed procedural requirements under the Civil Procedure Code. Strict compliance with statutory requirements relating to wills, probate, publication, objections, inventories, and final accounts is essential. Testamentary proceedings play a critical role in ensuring orderly succession to the estate of deceased persons and protecting the rights of heirs, beneficiaries, executors, and creditors.