Ilfar Kalanthar L.L.

B (Hon) (UK)

Inheritance and Succession to Property

Testate Succession
- When a person has executed a last will nominating persons who will
succeed to his/her property after his /her death.

Intestate Succession
- Manner in which succession takes place or heirs are determined
according to law applies to that person who had died without executing
a last will.

Testate Succession
- Wills Ordinance No.21 of 1844 apply to all persons (governed by general
law + personal laws including Muslim)

- By writing a last will a person can avoid application of personal law to

divide his property and by last will he himself can decide how his
property should be distributed.

- Sec 2 of WO 1844 – Men and women over 18years are entitled to dispose
of property by a last will.

- A last will becomes valid only if it has been executed according to

provisions of PFO 1840.

- Section 4 PFO – “a person who wish to execute a last will should do it in

the presence of notary public and 2 witnesses or alternatively in the
presence of 5 witnesses of no notary is involved.

- If there’s a notary executing it, he should prepare in duplicate. The

original is handed over to the testator and the duplicate is kept in
notary’s custody.

- Person can dispose property by last will to anyone even to anyone

outside family

Confirmed in Wimalawathie v Opanayake.

- Where a father disposed his property to his illegitimate children under
his last will.

Lily Perera v Perera

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 Ilfar Kalanthar L.L.B (Hon) (UK)

- Property dispose of to legitimate and illegitimate children held to be

valid.
- Sec 516 – 555E CPC – if any person had died leaving a last will and any
one finds it should (after death) hand over to DC and apply to have the
will proved and have the probate issued to him/her.

- Therefore when testamentary action is filed requesting a probate,

persons interested in property get a chance to file their objections to
issue a probate to the executor.

- And can challenge the last will alleging that testator was not in good
health at time of execution of last will or has executed it under duress,
threat or without following legal requirments.

Actalina Fonseka v Dharshani Fonseka

- Last will challenged where one party concealed about existence of a last
will from lawful wife and daughter of testator. Held – mother and
daughter had a cause of action accepting the fraud.
Last will can be cancelled by several methods.
a. By writing a new last will and stating that the latest will cancel the old one.
b. Codicil can be prepared to add or modify the existing last will but codicil can’t
make major changes.
c. By destroying = but need to prove that by destroying he had an intention to cancel
it.

Instestate Succession
General Law
- Governed by Matrimonial Rights and Inheritance Ordinance 1876 which
reflects RDL principles
- Sec 530 – 554 D - CPC deals with the manner to initiate proceedings
when a person dies intestate or without a last will.
- Therefore an application for grant letters of administration of his/her
property – should be made to DC setting out the facts, death of the
deceased and heirs of the deceased.
- Courts decides who the heirs according to personal laws and appoints an
administrator for the purpose of dividing property among the heirs of
the deceased.
- Then an order Nisi for administration of property is published other heirs
can file objections id there are any.
- Sections 22-36 – deals with inheritance to property.

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 Ilfar Kalanthar L.L.B (Hon) (UK)

- Law doesn’t make a difference between half-brothers and full brothers

and all males and females have equal shares.
- Surviving spouse, legitimate children of the marriage and their
descendants = main heirs.
- Subject to the rights of the surviving spouse, the descendants of the
deceased inherit first.
- If no descendants, parents inherit.
- If no surviving parents, then collaterals or brothers and sisters inherits
in equal shares.
- Facts that surviving spouse separated from deceased without getting a
divorce and is living separate doesn’t affect surviving spouses
inheritance rights; Fernando v Magilin Hamine.

General Law
X died intestate

-1/2 to surviving children

½ share to - (males, female, full or half
surviving spouse blood inherit equally)
-If a child dies before x then his
share goes to child’s descendants
-If no surviving spouse, children
inherit fully in equal shares.

If no Children

½ to parents of X
½ to surviving
spouse - If only 1 parent – ½ to that
surviving parent & other ½ to
brothers & sisters full or half blood
equally

- If no parents brothers & sisters full

or half blood get equal
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- If no parents, no siblings then fully
 Ilfar Kalanthar L.L.B (Hon) (UK)

Kandyan Law
- Complex
- Rules of intestacy depend on the type of property i.e. movable or immovable and
whether the marriage is diga or binna.

Current law succession is contained in Kandyan Law Ordinance – 1938.

A. Movable Property
Section 21 – when a man dies intestate, the surviving spouse is entitled to all wearing
apparel, jewelry and ornaments used by her or provided by the deceased for her use.
Surviving spouse whether married in diga or binna – succeeds to all movable property of
the deceased.
Therefore subject to above right of the spouse, children (male or female, married or
unmarried, married in diga or binna) succeed in equal shares to movable property; Section
23.
Proviso to Section 23 – illegitimate children succeed if there are no legitimate children, if
the deceased is the father.
If the deceased is the mother, both legitimate and illegitimate children succeed to
movable property; Section 23.

B. Immovable Property
Paraveni Property – divides into (Diga and Binna)
Acquired Property.

i. Distribution of “Paraveni Property

Section 10 definition of Paraveni Property = immovable property obtained by the
deceased: -
a. Through inheritance as an intestate heir or
b. By way of a gift from a donor to whom he stood as an intestate heir.
c. By last will from a testator from whom he could have had rights in intestate
succession.

Paraveni may belong to a woman or a man and distribution again depends on whether the
marriage is a diga or Binna.

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 Ilfar Kalanthar L.L.B (Hon) (UK)

Distribution of
Paraveni in a Diga

Children & Descendants

in equal shares
[equal shares to sons,
binna married daughters Widow (if she does not
and unmarried daugthers] remarry in diga) has a
right to maintenance if
[diga married daugthers deceased had not left
excluded] acquired property or it is
inadequate

If no descendants to
father

(If no surviving father)

to brothers & sisters of
deceased on the father’s
side & their descendants
in equal shares.
[Sisters must be binna
married or unmarried.
(Diga married sisters are
excluded

To mother if no heir no
father’s side Widow inherits as remote heir in
absence of all above heirs

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 Ilfar Kalanthar L.L.B (Hon) (UK)

• Therefore diga married daughter and sister have no right succession to Paraveni
property of father or brother.
• Unmarried daughter who later contracts a diga marriage should transfer her share
already inherited within a year of her marriage to a brother or binna married sister
for a fair market value.
• Under Kandyan Law, a diga married daughter just like an adopted child or a
Buddhist monk cannot inherit Paraveni as they have broken the connection with the
family.
• Therefore before 1938, a diga married daughter who did not break her connections
with her family did not lose her inheritance rights. [This view was accepted by
courts then]

Mampitiya v Wegodapola
o Held – diga married sister/ daughter who continue to live in ancestral home
or had not left her ‘mulgedara’ home or lose her right to inheritance rights
to paraveni property.

o Marriage certificate was the best evidence of the marriage whether diga or
binna but the court allowed oral evidence too.

Seneviratne v Halangoda
o Held- Inheritance rights didn’t depend on the type of marriage but on the
proof of actual severance/ break away from parental home as it was
possible for a diga married daughter to acquire binna rights even though the
marriage is registered as a diga marriage.

o But KLO changed this and enacted that change of residence after a diga
marriage cannot lead to a re-acquisition of inheritance rights.

o Therefore diga married daughter loses right to inherit paternal paraveni

property completely; Section 9.
o To give some relief to diga married daughter, court held in Rana v
Kiribindu that she can reacquire inheritance rights to paraveni upon
dissolution of her marriage.

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 Ilfar Kalanthar L.L.B (Hon) (UK)

o But in Jayasinghe v Kiribindu court held that diga married daughter

cannot reacquire even after dissolution of her marriage by residing in
mulgedara.

Distribution of Wife’s Paraveni

Children and
Descendants in equal Widower excluded
shares (irrespective of completely
diga or binna)

No descendants
a. Paternal
paraveni to
father and
failing him to
colleterals on
father’s side &
descendants in
equal shares.

b. Maternal
paraveni to
mother – failing
her to
collaterals on
mother’s side &
descendants in
equal shares.

c. Maternal
paraveni to
father, if no
heirs on
mother’s side
and paternal
paraveni to
mother, if no
heirs on Page 7 of 10
father’s side
 Ilfar Kalanthar L.L.B (Hon) (UK)

Distribution of Acquired Property

- Acquired = all property which is not Paraveni

Husband’s Acquired Property

Children & Descendants in

equal shares
Widow acquires life
interest
a. In half share if
No descendants to collaterals there are
of full or half blood subject to descendant from
life interest in surviving earlier marriage
spouse.
b. Must support
minor legitimate
children if
paraveni is
insufficent
Collaterals take subject to
life interests of parents if no
descendants or surviving
spouse.

To surviving parent if no Widow inherit as a remote

collateral & their descendants heir in absence of all other
heirs

Lydiya v Kiri ukkuwa

Widow received only a life interest because there were half-brothers and sisters of the
deceased.

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 Ilfar Kalanthar L.L.B (Hon) (UK)

Distribution of wife’s acquired

property

Children and
descendants inherit in
equal shares whether
married in diga or binna Widower has a life
interest. If no
children or
descendants ,
widower gets full
ownership

Collaterals take subject

to life interest of
surviving parent if no
descendants or surviving
spouse

If no surviving collaterals
Widower inherits as a
and their descendants to
remote heir in absence of
surviving parent
all other heirs.

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Loosing inheritance rights by a diga married daughter does not apply to mother’s
property
 Ilfar Kalanthar L.L.B (Hon) (UK)

Distribution of Paraveni & acquired property in binna marriage

• Marriage certificate is best evidence as to the type of the marriage.

• But oral evidence was admitted in Dingiri Amma v Ratnatileke.

• As there are no separate provisions in relation to inheritance right to immovable

property in binna marriage, property would be distributed in the same way as diga
marriage.

• If widow remarries in binna, she does not lose her right inherit paraveni like a
widow’s position who remarries in diga.
• Widower of a binna marriage cannot inherit his wife’s immovable property.

Tikini Banda v Appuhamy

• Held – husband in diga marriage has life interest in his wife’s acquired property and
any person who purchases a share of such property from an heir of deceased
woman cannot get possession of that property until the deaths of her husband.

• Also held – husband of diga marriage get rights of inheritance to wife’s acquired
property in the absence of children but a husband of a binna marriage does not get
such a right.

Rights of illegitimate children

Section 15
• Illegitimate children have no right to inherit father’s paraveni property
• Illegitimate can inherit acquired property of father subject to life interest of surviving
spouse if there are no legitimate children and or descendants of the deceased ;
Section 15(b)
• Illegitimate children succeed to father’s acquired property together with his legitimate
children if the deceased had registered him as the father of such illegitimate when
registering the birth of that child or a competent court has decided that he’s the
father of such illegitimate child ; Section 15(c)
• Illegitimate children has succession rights to paraveni of both father and mother
recognized in Setawa v Sirimalie

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