2020 has been a year like no other in recent memory. The unparalleled threat from COVID-19 has caused unimaginable suffering around the world. During this unprecedented and unsettling time, there is an opportunity here to take advantage of the phone calls and emails slowing down for some and to use your time to address those things you have been putting off. In times like these, your initial priority is to make sure you take care of yourselves, friends and family. However, while it is crucial to protect those close to you, you should also give consideration to the protection of your assets. It is easy to procrastinate with these, particularly when these types of concerns are not at the forefront of people’s minds. We often find that where a review did not take place that changes in circumstances have raised significant issues as to interpretation, use and enforcement. Lawyers will always instruct that you should consistently review your legal affairs, more like a legal check-up, and check if they fit what your current and anticipated circumstances are. The Last Will or Testament is the most common legal document for distributing one’s assets after death. The COVID-19 outbreak has meant that the final requirement, to have the signing of the Will witnessed, has become challenging. Generally, the witness needs to be physically present beside the testator and sign the Will at the same time as them. This creates a problem during times like this and most have resorted to video conference calls to witness and to sign virtually instead of physically appearing. Seeking for professional legal assistance is vital when drawing up a Last Will, especially during testing times like this.
What is a Last Will?
This can be identified as a document by which the Testator (the person who prepares the Will) appointing an executor to administer his estate upon his death and that document indicates the manner in which the estate is to be distributed among the beneficiaries upon his death.
The main purpose of drawing up a Last Will is to ensure that the Testator’s wishes are carried out upon his/her demise and not the default testamentary laws of the country are applied upon the Testator’s death for the division of the Testator’s estate.
What if a person dies without a Last Will? Why is it important to have a Last Will?
Dying without a Will means the division of the estate will be determined by the intestate law of the country. You will have no say over who receives your property. Your ultimate wishes may not be obliged, and division of your property may take place in a manner which is not in line with your expectation, but the prevailing law. The law of intestate succession will apply in dividing the properties. Your heirs will have to bear certain legal and administrative expenditure to get possession of such property and wealth.
Ex: If you are married 1/2 of your assets will go the surviving spouse and the balance 1/2 to be equally distributed among the children.
The rights of the minor children if no surviving spouse will be determined by the judge depending on the circumstances.
If you fail to write a Last Will stating the manner in which your property / wealth should be divided, delays and problems in distribution of such property may occur after your death.
How do you execute a Last Will? What are the Formalities of executing Last Wills?
The formalities which are required to execute a Last Will in Sri Lanka are provided in the Prevention of Frauds Ordinance (‘Ordinance’).
According to Section 4 of the Ordinance, it is mandatory that the Last Will to be in writing and signed by the Testator or any other person appointed by the Testator in his presence. It is essential that such signature to be made in the presence of a licensed Notary public and two other witnesses or in the presence of 5 or more witnesses and they are expected to be present at the same time. The Wills are drawn up in duplicate, and such duplicate is not required to be sent to the Land Registry with the monthly list along with the other documents. It must also be noted that Wills are exempted from stamp duty.
It must be borne in mind that an attesting witness or his/her wife/husband cannot be benefited by the Will or become beneficiaries of the Will as set out in Section 11 of the Ordinance.
Section 9 of the Ordinance also provides that a Will executed in the right manner shall not need any publication for it to be a valid one. However, it will be necessary after the death of the Testator/Testatrix for the Will to be filed in the District Court having jurisdiction and apply for and obtain probate of the Will.
Who cannot create a Will?
The law has recognized persons who are not eligible to create a Last Will. Namely, persons underage of 18 years are not eligible to make a Last Will as set out in Wills (Amendment) Act (No. 5 of 1993). Further, persons who are mentally unstable are also recognized as persons who are not qualified to make a Will.
Persons who are born deaf and dumb are also considered as persons not eligible to make a Will. However, a deaf person who can speak and a dumb person who can write may make a Will. It must also be noted that dumb persons may not be allowed to do so except by the permission of the court.
How do you revoke a Will?
Once a Will has been created by the Testator, it is also important to know on the validity of such Will created.
Section 6 of the Prevention of Frauds Ordinance sets out 3 ways in which Wills could be revoked. Namely, a Will could be revoked by a subsequent marriage of the Testator. For instance, ‘A’, the father of the family in his Last Will mentions that the house shall be gifted to his Child ‘B’ upon his death which was drawn up in the year 2000. ‘A’ gets a divorce in the year 2001 and gets married to ‘C’ in that same year (subsequent to the Last Will). ‘A’ dies in the year 2003. In such a situation how will the house devolve? Will ‘B’ get the house as mentioned in the Will?
It must be noted that the Last Will which was drawn up in the year 2000 gets automatically cancelled at the time ‘A’ gets married to ‘C’. Hence the house shall not be gifted to ‘B’ upon ‘A’s death unless he writes up another Last Will subsequent to his second marriage stating his desire to do so.
However, it must also be borne in mind that this revocation shall not apply in the case of a Joint Last Will of a husband and wife.
Another way in which a Will could be revoked is by another Will or by a Codicil. A codicil is known as an amendment to the Will. In this method, it is essential to a have a clause which revokes all Wills and Codicils created before and must be executed in accordance with section 4 of the Prevention of Frauds Ordinance adhering to all the requirements stated above.
Finally, a Will could also be revoked by tearing, burning or otherwise destroyed by the Testator or some person in his presence with the intention of revoking the same.
LL.B (London), Attorney-at-Law,
Commissioner for Oaths