How to Make a Legally Valid Last Will in Sri Lanka

Many people believe that making a last will is something to think about only when they become elderly. Others assume that writing down their wishes, signing the paper and keeping it safely at home is enough. However, a last will must meet specific legal requirements to be valid. A properly prepared will can help someone decide how their property should be distributed after death and reduce uncertainty for their family.

Under the Wills Ordinance, as amended by Act No. 29 of 2022, a person who has reached 18 years of age may make a will within the scope of the legislation. The testator must also have the necessary mental capacity and act voluntarily. A will may be challenged if the person lacked capacity or was subject to legally impermissible pressure.

In particular, a person's capacity must exist when the will is executed. Being at least 18 years old is not the only legal requirement.

A will can deal with land, houses, bank balances, investments, vehicles and other legally disposable interests. A person cannot ordinarily give away another person's property. If a husband and wife each own half a house, a will by the husband cannot ordinarily dispose of the wife's half.

The Wills Ordinance, as amended in 2022, recognises broad freedom to choose beneficiaries, including excluding a particular relative without assigning reasons. But testamentary freedom does not remove requirements concerning validity, capacity, ownership and proper execution.

The Prevention of Frauds Ordinance, as amended by Act No. 30 of 2022, prescribes requirements for an ordinary will, including a written document, signature, the prescribed thumb impression or statutory alternative, and execution before a notary public and two witnesses present at the same time. Notarial rules must also be observed.

Older guidance suggesting a will can simply be executed before five witnesses without a notary is not a reliable statement of the amended law. Professional assistance is advisable.

• Clear identification of the testator and beneficiaries.
• Accurate property descriptions.
• The intended gifts or shares.
• A suitable executor.
• Contingencies if a beneficiary dies first.
• A provision for the remaining estate.

A residuary clause deals with property left after specific gifts and liabilities. Without an effective clause, some assets may pass under intestacy.

For example, a testator may leave a specific house to a daughter and direct how the balance of the estate should be divided. The will should also deal with what happens if a beneficiary dies before the testator.

Choose a reliable person capable of obtaining probate, protecting assets, dealing with debts and distributing the estate. The executor is not automatically the owner of the property.

Section 11 of the Prevention of Frauds Ordinance contains rules affecting gifts made to an attesting witness or that witness's spouse. This can affect a benefit intended under the will. Suitable independent witnesses can help avoid this problem.

A person may wish to change a will after marriage, having children or acquiring property. A new properly executed will, a codicil or another recognised method may be needed. Informal crossing-out or handwritten changes to an executed will may not work. Marriage may also affect an existing will.

Major changes in family circumstances, including marriage, divorce or the birth of children, are sensible occasions to review existing testamentary arrangements.

Keep the original securely and ensure the executor or a trusted person knows where it can be located. Missing originals can make probate more difficult.

Where the original cannot be found after death, proving the deceased's wishes can involve additional evidentiary and court difficulties.

A valid will requires much more than written wishes. Proper drafting, execution and safekeeping help families understand and implement the testator's intentions.

• Wills Ordinance, section 2, as amended by Act No. 29 of 2022
• Prevention of Frauds Ordinance, sections 4, 6, 7 and 11, as amended
• Notaries Ordinance

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