These slides describe the law that applies to Last Wills and how a Last Will can be created. This is from a lecture in Conveyancing conducted for the final year students of the Sri Lanka Law College in 2007

1. Last Wills, Testaments
& Codicils
Prevention of Frauds Ordinance
No. 7 of 1840
COPYRIGHT Ajithaa Edirimane - No part of this slide
presentation shall be copied or extracted or used in anyway
without the publisher’s permission - ajithaa2001@yahoo.com
Ajithaa Edirimane, LLB MLB
Attorney-at-Law & Notary Public

2.  The word “Testament” is derived from the Latin
word testatio mentis, meaning that it bears
witness to the determination of the mind.
 The principle characteristic of a Will is that it is
not operational during the life of the testator
and it can be revoked by the testator.

3. Capacity to make a Will
 Except the following, all others can bequeath
under a Last Will:
 Minors
 Those who are mentally or bodily infirm
preventing them from being of ‘sound mind and
memory’
 Insane persons, unless during lucid intervals
 Deaf and dumb persons unless they could
understand and declare their intention.

4. Joint Wills
 A husband and wife can make a Joint Will,
which is in the form of two Wills joined
together.
 It can be revoked separately in respect of
property belonging to either the husband or the
wife without the knowledge of the other.

5. Codicil
 A Codicil is a supplement to a Will and is
executed in the same manner. Extensive
alterations to a Will should not be made by a
Codicil.
 To draft a Codicil, the drafter should have a
copy of the Last Will for reference.
 A Codicil is considered as part and parcel of the
Last Will it refers to.

6. Execution of a Last Will. Testament or Codicil
Sec. 4
 Every Will, Testament or Codicil bequeathing land or
other immovable property shall be:
 In writing
 Signed by the testator or by some other person in his
presence and by his direction
 Acknowledged by a Notary Public who shall attest the
same and by 2 or more witnesses who shall be present
at the same time
 If there is no Notary Public, then it shall be witnessed
by 5 or more witnesses present at the same time, but in
that case no form of attestation is necessary.

7. Attestation
 In De Soyza vs Anwardt (1878) 1 SCC 28, the
Will was signed by the Testator, Witnesses and
the Notary. But the Attestation was on a
separate piece of paper. it was held that such an
attestation is not in accordance with the
Prevention of Frauds Ordinance.

8. Method described in Sec. 4 is not
necessary and exempted
 In the case of soldiers in actual military service
or
 Any mariner or seaman at sea
In respect of whom, the Last Will can be in any
form as long as the intention to devise property
is clearly indicated. (e.g. verbal)

9. Appointment of an Executor
Sec. 5
 Appointment of an Executor should also be by Last Will,
Testament or Codicil in the manner provided under Sec. 4
 An Executor is assigned with the duty of administering the estate
of a deceased according to the provisions of the Will.
 The approval of an Executor is not necessary for the bequeath
of a property which is provided for in a Last Will. De Krest vs
Don Johans (9 NLR 7)
 Trustees for management of property and Guardians for minor
children can also be appointed under a Last Will.
 An Executor can be a witness to prove a Last Will and can be
compensated for the services rendered. (Sec. 13)

10. Executors (cont)
 In Fernando vs Fernando it was held that the English
Law of Executors and Administrators was introduced
locally and that the power of Executors and
Administrators extend to real as well as personal
property.
 An Executor cannot assign his Executorship to another
during his lifetime.
 An Executor of an Executor’s estate is entitled to
administer the original testator’s estate. Silva vs Cornelis
De Silva
 A Will which is in the custody of an Executor is
deemed to be in the ‘proper custody’.

11. Witnesses
 Witnesses to a Last Will or Codicil should be persons of good
character.
 A devise by a Last Will, Testament or Codicil to a person who
witnesses or attests the said instrument or to such Witness’s or
Notary’s wife or husband is null and void. – Sec. 11
 If at the time of execution of the Last Will, one witness was
found to be incompetent, and if that person was one among the
minimum required for the execution of a Will, it is sufficient to
make the entire Will void.
 If a witnesses after execution of a Last Will becomes
incompetent ( e.g. insane ) it will not invalidate the Last Will. –
Sec. 10

12. Revocation of a Last Will, Testament or Codicil
Sec. 6
A Last Will, Testament or Codicil is revoked:
1. By marriage of the testator or testatrix
2. By another Will, Testament or Codicil
3. By a document in writing declaring an intention to
revoke the Last Will or executed in the manner a Last
Will, Testament or Codicil is executed
4. By burning, tearing or otherwise destroying the same
by the testator, testatrix or by some other person
under his or her direction with the intention to
revoke

13. Invalidating a Will
 If the Testator is subject to ‘coercion’ or ‘duress’
in making a Will, such a Will can be invalidated.
Pieris vs Pieris (8 NLR 179)

14. Alterations to a Last Will, Testament or Codicil
Sec. 7
All alterations to a Last Will, Testament or Codicil
after its execution, to be valid should be:
 Signed by the testator or testatrix and the
subscribing witnesses at the margin next to the
alteration or at some other place close to the
alteration

15. Reviving a revoked Will, Testament or Codicil
Sec. 8
A Will, Testament or Codicil which has been revoked can be
revived only by:
1. Re-execution of the said revoked instrument, or
2. By a codicil showing an intention to revive a revoked
instrument
A Will which was partly revoked and then wholly
revoked, is thereafter revived, it shall re-establish only the
previously revoked instrument and not the earlier partial
revocation, unless the words used specifically refers to the
earlier partial revocation too.

16. Publication of Last Wills, Testaments and Codicils
 In the case of Wills, Testaments and Codicils,
publication and registration is not necessary for its
validity.
 Such instruments therefore need not be sent for
registration to the Land Registry nor duplicates filed
with the Monthly List of a Notary who had attested the
same.
 In executing a Will, only the Original and the Protocal
retained by the Notary will be prepared.
 Mere reference to the Last Will with the No. and date
without any other particulars is sufficient in the
Monthly List of a Notary.

17. Proving a Last Will
 All Last Wills, Testaments and Codicils should be proved in
accordance with the provisions contained in Chapter 38 of the
Civil Procedure Code.
 Title under a Last Will can be established only by a Probate.
Charles Hamy vs Jane Nona (15 NLR 461)
 In the case of a Last Will, upon proving it in the respective
District Court, Probate is granted to the Executor or Executrix
named in the Last Will
 The estate of a person who dies without leaving a Last Will, if is
in excess of Rs. 4,000,000/- in value, should be administered by
an Administrator appointed by Court.

18. Interpretation of a Will
 If a bequest is made by Will to “Children” without
naming each child, then the property so devised will be
equally distributed among all children of the Testator.
 Nephews and Nieces do not include ‘grand nephews
and grand nieces’
 Tangibles will include ‘cash, bank accounts and
securities” unless these are specifically excluded.
 Residue property should also be willed, if not these will
be administered separately if the value of same exceeds
Rs.4,000,000/-

19. Main Parts of a Will
 EXORDIUM
 The exordium, also called the publishing or
introductory clause, performs the following
four important functions:
1. • It identifies the testator with every known
name, or alias, if different, in which real estate is
held or securities are registered, i.e., Ranjith
Perera or Ranjith Perera alias Ranjith Sunil
Perera.

20. 1. Exordium (cont)
2. It recites the city or town, of the testator’s
current domicile. Although not binding, the
recitation of domicile in the will may be
helpful if domicile is at issue to prove the Will.
3. It declares the instrument to be the testator’s
last will.
4. It revokes prior wills and codicils.

21. Example of an Exordium
 This is the Last Will and Testament of
me…….of………. in the Democratic Republic
of Sri Lanka.
 I do hereby revoke, cancel and annul all Last
Wills, Codicils and other testamentary writings
or dispositions heretofore made done or
executed by me and declare this to be my Last
Will and Testament.

22. 2. Appointment of Executor,
Trustees and Guardians
 This is effected with the words “ I do hereby
nominate, constitute and appoint …..of ….as
the Executor of my Last Will and Testament.

23. 3. Institution of Heirs and Legatees
1. This is effected with the words “ I do hereby
give devise and bequeath unto my son…..

24. 4. Testimonium
 In Witness Whereof I, the said ……… do hereunto and to
another of the same tenor and date as these presents set my hand
at Colombo on this …….day of …….Two Thousand and Seven.
 Signature of the Testator
 Signed and Declared by the above named Testator………..in
sound mind and memory as and for his Last Will and Testament
in the presence of us the undersigned witnesses who in his
presence and at his request and in the presence of one another
all being present together at the same time have subscribed our
names hereto as attesting witnesses.
 Signatures of Witnesses 1 & 2
 Signature of Notary Public