|Replacement of Chapter XXXVIII of the principal enactment. |
4. Chapter XXXVIII of the Civil Procedure Code is hereby repealed and the following Chapter is substituted therefor :
Deposit of will of deceased
516. When any person shall die leaving a will in Sri Lanka, the person in whose keeping or custody it shall have been deposited, or who shall find such will- after the testator's death, shall produce the same to the District Court of the district in which such depository or finder resides, or in the District Court of the district in which the testator shall have died, within three months after the finding of the will, and he shall also make oath or affirmation, or produce an affidavit in Form No. 81 in the First Schedule verifying the time and place of death, and stating (if such is the fact) that the testator has left property within the jurisdiction of that or any other, and in that event what court, and the nature and value of such property ; or, if such is the fact, that such testator has left no property in Sri Lanka.
Application for probate or administration.
(1) When any person shall die leaving a will under or by virtue of which any property in Sri Lanka is in any way affected, any person appointed executor therein may apply to the District Court of the district within which he resides, or within which the testator resided at the time of his death, or within which any land belonging to the testator's estate is situate, within the time limit and in the manner specified in section 524, to have the will proved and to have probate thereof granted to him ; any person interested, either by virtue of the will or otherwise, in having the property of the testator administered, may also apply to such court to have the will proved and to obtain grant to himself of administration of the estate with copy of the will annexed.
(2) If any person who would be entitled to administration is absent from Sri Lanka s grant of letters of administration with or without the will annexed, as the. case may require, may be made to the duly constituted attorney of such person.
Probate or administration compulsory when there is a will.
518. In every case where a will is deposited in court after the coming into operation of this Chapter, and no application has been made by any person to have the will proved and probate granted in respect thereof, the court shall, in accordance with the procedure set out in respect of the grant of probate or letters of administration on application made thereto, proceed to grant of probate of the will, to the executor or executors named in such will, or letters of administration with or without the will annexed, as the case may require, to some person who by the provisions of the last preceding section is competent to apply for the same, or to some other person who, in the opinion of the court, by reason of consanguinity, amount of interest, the safety of the estate, and probability that it will be properly administered, is a proper person to be appointed administrator and in every such case letters of administration may be limited or not in manner hereinafter provided, as the court thinks fit.
When Public Trustee may be appointed.
519. Where there is no person fit and proper in the opinion of the court to be appointed administrator in the manner provided, in the last preceding section or no such person is willing to be so appointed, and not in any other case, the court shall appoint the Public Trustee as administrator.
520. In every case in which it is found necessary, whether by reason of such executor as aforesaid not applying for probate, or by reason of there being no executor resident in Sri Lanka competent and willing to act, or by reason of no person who is competent under section 517 to apply for letters of administration, so applying, that any such person as is mentioned, in section 518 should be appointed administrator, the court shall take from such person security for the due administration of the estate, and shall for this purpose require such person to enter into a -Bond with two good and sufficient sureties in Form No. 90 in the First Schedule, for the due administration of the deceased person's property, and it shall not in any case be competent for the court to dispense with such security.
Application for administration by the Public Trustee.
(1) Whenever the Public Trustee applies for letters of administration, it shall be sufficient if the petition presented for the grant of such letters states
(a) the time and place of the death of the deceased to the best of the knowledge and belief of the petitioner;
(b) the names and addresses of the heirs of the deceased, if known ;
(c) the full and true particulars of the property left by the deceased as far as he has been able to ascertain the same ;
(d) particulars of the liabilities of the estate, if known-
(2) The Public Trustee shall not be required to file accounts of the property of the deceased unless the court otherwise directs.
Duties of Public Trustee in administering estates.
522. Whenever the Public Trustee has obtained probate in respect of a will or grant of letters of administration in respect of the estate of a deceased person, he shall as far as practicable, comply with the provisions of this Chapter relating to the administration of estates:
To whom grant should be made.
523. In the case of a conflict of claims to have the will proved and probate or letters of administration granted, the claim of an executor or his attorney shall be preferred to that of all others, and the claim of a creditor shall be postponed to the claim of a residuary legatee or devisee under the will. And in the like case of a conflict of claims for grant of. administration where there is intestacy, the claim of the widow or widower shall be preferred to all others and the claim of an heir to that of a creditor:
Mode of application for probate and proof of will.
(1) Every application to the, District Court to have the will of a deceased person proved, shall be made within a period of three months from the date of finding of the will, and shall be made by way of petition and affidavit and such petition shall set out in numbered paragraphs
(a) the fact of the making of the will;
(b) the details and the situation of the deceased's property;
(c) the grounds upon which the petitioner is entitled to have the will proved; and
(d) the, character in which the petitioner claims (whether as creditor, executor administrator, residuary legatee, legatee heir or devisee).
(2) If the will is not already deposited in the District Court in which the application is made, it must either be appended to the petition or must be brought into Court and identified by affidavit, with the will as an exhibit thereto,, or by parole testimony at the time the application is made.
(3) Every person making or intending to make an application to a District Court under this section to have the will of a deceased person proved, which will is deposited in another District Court, is entitled to procure the latter Court to transmit the said will to the Court to which application is to be made, for the purpose of such application and such application must be supported by sufficient evidence either by way of affidavits of facts, with the will as an exhibit thereto, or the oral testimony, proving that the will was duly executed according to law and establishing the character of the petitioner according to his claim.
(4) The petitioner shall tender with the petition
(a) proof of payment of charges to cover the cost of publication of the notice under section 529 ; and
(b) the consent in writing of such respondents as consent to his application.
(5) If the petitioner has no reason to suppose that his application will be opposed by any person, he shall file with his petition an affidavit to that effect and may omit to name any person in his petition as respondent.
Duty to report where person dies leaving property exceeding five hundred thousand rupees in value.
525. When any person shall die in Sri Lanka without leaving a will, it shall be the duty of the widow, widower, or next of kin of such person, if such person shall have left property in Sri Lanka amounting to or exceeding in value five hundred thousand rupees, within one month of the date of his death to report such death to the District court of the district in which he shall have so died, and at the same time to make oath or affirmation or produce an affidavit verifying the time and place of such death, and stating if such is the fact, that the intestate has left property within the jurisdiction of that or any other, and in that event what court, and the nature and value of such property.
Who may apply for letters of administration.
526. When any person shall die without leaving a will or where the will cannot be found, and such person shall have left property in Sri Lanka
(a) any person interested in having the estate of the deceased administered may apply for the grant to himself of letters of administration; or
(b) any heir of the deceased may apply for the issue of certificates of heir-ship to each of the heirs entitled to succeed to the estate of the deceased.
Administration compulsory where estate is over five hundred thousand rupees in value.
527. In cage no person shall apply for the grant of letters of administration or for the issue of certificates of heir ship, as the case may be and it appears to the court necessary or convenient to appoint some person to administer the estate or any part thereof, it shall be lawful for the court in its discretion, and in every such case where the estate amounts to, or exceeds in value, five hundred thousand rupees, the court shall in accordance with the procedure set out in this Chapter appoint some person, whether he would under ordinary circumstances be entitled to take out administration or other wise, to administer the estate, and the provisions of sections 518 to 521, both inclusive, shall apply, so far as the same can be made applicable, to any such appointment.
Mode of application for letters of administration or certificates of heir ship.
(1) Every application to the District Court for grant of administration or for the issue of certificates of heir ship shall be made within three months from the date of death, and shall be made by way of petition and affidavit, and such petition shall set out in numbered paragraphs-
(a) the fact of the absence of the will;
(2) The application shall be supported by sufficient evidence to afford prima facie proof of the material averments in the petition, and shall name the next of kin of the deceased as respondents. If the petitioner has no reason to suppose that his application will be opposed- by any person, he shall file with his petition an affidavit to that effect.
(3) The petitioner shall tender with the petition
(a) proof of payment of charges to cover the cost of publication of the notice under section 529 ;
Publication of notice relating to application under section 524 and 528.
(1) Every application to a District Court under section 524 or 528 shall be received by the Probate Officer of the District Court, and shall be registered in a separate register to be maintained for that purpose by the Probate Officer who shall thereafter cause the required publications to be made in terms of subsection (2).
(2) The Probate Officer of a District Court shall, on any day of the week commencing on the third Sunday of every month cause a Notice in Form No. 84 in the First Schedule to be published in a prescribed local news- paper in Sinhala, Tamil and English incorporating the information relating to
(i) every application under section 524 or 528 received by that District Court in the Preceding one month ; and
(ii) every application under section 524 or 528 received by that District Court and incorporated for the first time in the notice published in respect of such District Court in the previous month,
(3) The notice published under subsection (2), shall call upon persons having objections to the making of an order declaring any will proved or the grant of probate or of letters of administration with or without the will annexed, or the issue of certificates of headship to any person to whom the notice relates, to submit their written objections, if any, supported by affidavit, before such date as is specified in the notice, being a date not ' earlier than sixty days and not later than sixty seven days from the date of the first publication referred to in subsection (2).
(4) Copies of such objections if any, shall be forwarded by the person making the same to the person making the application under section 524 or 528 as the case maybe, and shall also be served on the other parties named in such objections.
Appointment of Guardian Or Manager.
530. If any of the heirs, legatees or beneficiaries named in such notice is a minor without a natural guardian, or person of unsound mind, without a guardian, steps shall be taken for the appointment of a guardian of manager, upon the making of an application to the District Judge, which application shall be heard in Chambers.
Order on application made under sections 524 and 528.
(1) If no objections are received in relation to any application received under section 524 or 528 in response to a notice published under section 529, on or before the date specified in such notice in respect of such application, the Court shall
(a) in the case of an application under section 524, if the Court is satisfied that the evidence adduced is " sufficient to afford prima facie proof as to the due making of the will and the character of the petitioner, it shall make order declaring the will to be proved and if the applicant claims
(i) as the executor or one of the executors of the will, and asks that probate thereof be granted to him, the order shall declare that he is executor, and shall direct the grant of probate to him accordingly, subject to the conditions hereinafter prescribed ; or
(ii) in any other character than that of executor, and asks that the administration of the deceased's property be granted to him, then the order shall include a grant to the applicant of a power to administer the deceased's property according to the will with a: copy of the will annexed ; or
(2) The certificates of heir ship issued under subsection (1) (b) (ii) above shall be sufficient proof of the true heirs of the deceased referred to therein, and may be produced for the purpose of claiming any share in respect of any right, title or interest, accruing upon intestacy. .
(3) For the purpose of making an order under subsection (1), the Probate Officer shall submit all papers relevant to the application in question, to the District Judge in Chambers on the day following the date specified in the notice published under section 529, in respect of such application and the court shall forthwith make an appropriate order.
Procedure where there are objections to applications under section 524 or 528.
(1) If any objections are received in relation to any application under section 524 or 528 in response to a notice published under section 529, on or before the date specified in such notice in respect of such application, the Court shall proceed to hear try and determine such application in accordance with, the procedure herein provided and may for such purpose name a day for final hearing, and disposal of such application and may, in addition, make such order as it may consider necessary under section 541 hereof.
(2) For the purpose of making an order under subsection (1), the Probate Officer shall submit all papers, relevant to the application in question, to the District Judge in Chambers on the day following the date specified in the notice published under section 529.
Effect of acting in pursuance of a certificate of heir ship.
532A. Where upon the production of a certificate of heir ship issued by a District Court, under section 531(1) (b) (ii), any money, movable property or certificate is handed over or transferred in pursuance of such certificate, by any Bank or institution to any heir entitled to the same, such handing over or transfer shall be deemed to be in discharge of an obligation to the deceased in respect of whose estate the certificate of heir ship is so issued.
At final hearing court to frame issues.
533. If on the day appointed under section 532 (1) for final hearing, or on the day to which it may have been duly adjourned the persons filing objections satisfies the court that there are grounds objecting for to the application, such as ought to be tried on viva voce, evidence, then the court shall frame the issues which appear to arise between the parties, and shall direct them to be tried on a day to be appointed for the purpose under section 386.
Orders that may be made on final hearing.
(1) If at "the final hearing, or on the determination of the issues thus framed it shall appear to the court
(a) that the prima facie proof of the material averments in the application have not been rebutted, the court shall forthwith make order for the grant of probate or letters of ad ministration with the will annexed or grant of administration only subject to the conditions hereinafter prescribed, or for the issue of certificates of heir ship, as the case may be ; or
(2) The dismissal of any petition shall not be a bar to a renewal of the application by the petitioner as long as grant either of pro-bate of the deceased's will, or of administration of his property, shall not have been made, either on the occasion of this application or subsequently thereto, to some person other than the petitioner.
Procedure where corporation is appointed administrator or executor.
(1) Where a Corporation is appointed executor under a will either alone or jointly with another person, the court may grant probate to such Corporation either solely or jointly with such other person as. the case may require, and the Corporation may act as executor accordingly.
(2) Letters of administration may be granted to any Corporation either solely or jointly with another person and the Corporation may act as administrator accordingly.
(3) Any officer, authorized for the purpose by such Corporation, may swear affidavits, take the oath of office, give security, and do any other act or thing, which the court may require, on behalf of the Corporation and the acts of such officer shall be binding on the Corporation-
Who may file Caveat.
536. At any time after the notice publish ed under section 529 and before the final hearing of the petition, it shall be competent to any person interested in the will or in the deceased person's property or estate, though not a person specified in the petition, to intervene, by filling in the same court a caveat as set out in Form 93 in the first Schedule against the allowing of the petitioner's claim or a notice of opposition thereto, and the Court may permit such person to file objections, if any, and may adjourn the final hearing of the petition.
Power to recall revoke or cancel probate administration or certificate of heir ship.
537. In any case where a certificate of heir ship has issued, or probate of a deceased person's will or administration a", a deceased person's property has been granted it shall be competent to the District Court to cancel the said certificate, or recall the said probate or grant of administration, and to revoke the grant thereof, upon being satisfied that the certificate should not have been issued or that the will ought not to have been held proved, or that the grant of probate or of administration ought not to have been made; and it shall also be competent to the District Court to recall the probate or grant of administration, at any time upon being satisfied that events have occurred which render the administration hereunder impracticable or useless.
Transitional for recall &c.
538. All applications for the cancellation, recall or revocation of certificates or heir ship, probate or grant of administration shall be made by petition, in pursuance of the rules of summary procedure, and no such application shall be entertained unless the petitioner shows in his petition that he has such an interest in the estate of the de- ceased person as entitles him in the opinion of the court to make such application.
Inventory and valuation.
(1) In every case where an order has been made, by a District Court declaring any person entitled to have probate of a deceased person's will, or administration of a deceased person's property granted to him it shall be the duty of the said person, executor or administrator, in whose favour such order is made, to take within fifteen days of the making of such order, the oath of an executor or administrator as set out in Form No. 92 in the First Schedule, and thereafter to file in court within a period of one month from the date of taking of the oath, an inventory of the deceased person's property and effects, with a valuation of the same as set out in Form No. 92 in the First Schedule and the court shall forthwith grant probate or letters of administration, as the case may be.
(2) Upon the making of an order under section 531 (1) (b) (ii) declaring any person entitled to have issued to him a certificate of heir ship, the court shall forthwith issue such certificate to such person.
Limited probate or administration.
540. It is competent to the District Court to make a grant of probate or a grant of administration, limited, either in respect to its duration, or in respect to the property to be administered thereunder, or to the power of dealing with that Property which is conveyed by the grant, in the following cases: ,
(a) When the original will of the deceased person has been lost since the testator's death, but a copy has been preserved, probate of that copy may be granted, limited until the original be brought into court.
Administration pendente lite.
(1) Where any legal proceeding touching the validity of the will of a deceased person or for obtaining, recalling or revoking grant of probate or letters of administration or for obtaining certificate of heir ship is pending, the court may, either on the ground of undue delay or for any sufficient cause
(i) grant letters of administration to the estate of the deceased, to an administrator limited for the duration of such proceeding, such administrator shall be subject to the immediate control of the court and act under its direction and shall' not have the right of Distributing the estate; or
(ii) if it become necessary to sell any property of the estate of a deceased person prior to the grant of probate or letters of administration the court may grant letters limited for the purpose of selling such property in which event the property shall then be specified in the grant and such grant shall expressly state that the letters are issued subject to the following conditions:
(a) that the sale shall be if by private treaty, at the price fixed by court or if by public auction either at an upset price of 'otherwise
(2) Before making an order for grant of letters under this section, the respondents to the original petition for probate or letters of administration, or certificates of heir ship shall be given notice of the application and they or any other person interested in the estate shall be heard in opposition unless they or any of them shall have signified their assent to such sale.
Power of administration when not limited.
542. If no limitation is expressed in the order making the grant, then the power of administration, which is authenticated by the grant of probate, or is conveyed by the grant of letters of administration, extends to every portion of the deceased person's property, movable and immovable, within Sri Lanka, other than such property as is deemed under section 554A not to be the property of the deceased, or so much thereof as is not administered, and endures for the life of the executor or administrator or until the whole of the said property is administered, according as the death of the executor or administrator, or the completion of the administration, first occurs.
Issue of Letters ad Colligenda.
543. If any person shall die leaving property in Sri Lanka, the Judge of the court of any district in which such property shall be situate shall, on the facts being verified to his satisfaction and, it being made to appear that there is not some next of kin or other person in Sri Lanka, entitled to administration of the estate of the person, so dying, issue letters ad colligenda in the Form No. 91 in the First Schedule to one or more responsible persons to take charge of such property until the same shall be claimed by some executor or administrator lawfully entitled to administer the same, or by any heir to whom a certificate of heir-ship shall have been issued.
(1) Any person over sixteen years of age who has
(a) moneys in any account, other than a current account in any licensed Commercial Bank within the meaning of the Banking Act, No. 30 of 1988;
(2) A nomination made under subsection (1) shall have effect upon the death of the nominator notwithstanding anything in his last will to the contrary.
(3) Any nomination made under subsection (1) shall be deemed to be revoked by the death of the nominee in the lifetime of the nominator or by written notice "of revocation signed by the nominator in the presence of a witness (who shall attest the signature of the nominator) or by any subsequent nomination made by the nominator.
(4) No money, certificates or other movable property shall be handed by the Bank or institution as the case maybe, to any nominee unless the nominee satisfies the Bank or 'institution as to his true identity.
(5) The handing over, or transferring of, any money, share certificate or deposit certificate or other movable property to any nominee of a nominator who has died, shall be a complete discharge of the obligations of the Bank or institution, in respect of the money, or other movable property, lying to - the credit of, or in the name of, such nominator, or under such insurance policy.
No action maintainable in certain cases.
545. No person shall
(a) maintain any action for the re- cover of any property; or
(b) effect any transfer of any property,
Probate when executor is appointed for a limited period.
546. When a person is appointed executor of a will for a particular purpose only of the will, and not" executor of the will generally, probate will be granted to him limited for that purpose only.
Fresh grant, when allowed.
547. When a sole executor or a sol surviving executor to whom probate has been granted, or a sole administrator or a sole surviving administrator to whom a grant of administration has been made, die leaving a part of the deceased's property unadministered, then a fresh grant of administration may be made in respect of the property left unadministered according to the rules hereinbefore prescribed for a first grant.
Rectification of errors.
548. Errors in names and descriptions, or in setting forth the time and place of the deceased's death or the purpose in a limited grant, may be rectified by the court, and probate, letters of administration or certificates of heir ship so granted or issued may be altered and amended accordingly.
Compensation of executors and administrator.
549. Compensation shall be allowed to executors and administrators by way of commission as well on property not sold but retained by the heirs, as on property sold by such executors and administrators, at such rate not exceeding three per centum, and on cash found in the estate and on property specially bequeathed, at such rate not exceeding one and a half per centum, as the court shall, after taking into consideration the circumstances of each particular case with reference to the trouble incurred by such executors or administrators, determine. In no case shall a larger sum than five thousand rupees be allowed to any executor or administrator as such compensation, un less it shall be made apparent to the court that such unusual trouble has fallen upon him as to entitle him, in the opinion of the court, to receive further remuneration.
Compensation of several executors.
550. Each executor of administrator shall be entitled to the full compensation allowed by law to a sole executor or administrator, unless there are more than three, in which case the compensation to which three would be entitled shall be apportioned among them all according to the services rendered by them respectively, and a like apportionment shall be made in all cases where there shall be more than one executor or administrator. But where the will provides a specific compensation for an executor or administrator, he shall not be entitled to any allowance other than that so provided, un less he files in court a written renunciation of the specific compensation.
Filing of accounts.
551. Every executor and administrator shall file in the District Court, on or before the expiration of twelve months from the date upon which probate or grant of ad ministration issued to him, or within such further time as the court may allow, a true and final account of his executorships or administration, as the case may be, verified on oath or affirmation, with all receipts and vouchers attached, and may at the same time pay into court any money which may have come to his hands in the course of his administration to" which any minor or minors may be entitled:
Executor or administrator failing to administer within one year liable for interest.
552. If any executor or administrator shall fail to pay over to the creditors, heirs, leg alee or other persons the sums of money to which they are respectively entitled within one year after probate or administration is granted, such executor or administrator shall be liable to pay interest out of his own funds for all sums which he shall retain in his own hands after that period, unless he can show good and sufficient cause for such detention.
(1) Any person who willfully conceals the existence of a will or knowingly fail to comply with the provisions of section 516 shall be guilty of an offence and shall be liable to a fine equivalent to the value of the estate dealt with in the will.
(2) Any person who willfully
(a) fails to disclose the existence of any heirs of the deceased; or
(1) Where a person has died without leaving a will in Sri Lanka prior to the date on which this Chapter comes into operation, and testamentary proceedings have not commenced in respect of the estate of such per- son, the provisions of this Chapter shall apply to the administration of such estate.
(2) Where an application has been made to any District Court prior to the date on which this Chapter comes into operation, for the issue of probate of a will or the grant of letters of administration in respect of an estate the value of which is over rupees five hundred thousand, and an order nisi has not been made, such application shall be deemed to be an application made under section 524 or 528 as the case may be, and shall be heard and disposed of in accordance with the provisions of this Chapter.
(3) Where an application has been made to any District Court prior to the date .on which this Chapter comes into operation, for the grant of letters of administration, in respect of an estate the value of which is less than rupees five hundred thousand, and an order nisi has not been made, such application shall be terminated on the coming into operation of this law:
(1) in this Chapter, "Probate Officer" means the Registrar of the District Court and includes any other officer generally or specially authorized by the court to exercise the powers and perform the duties of a Probate Officer, in testamentary proceedings.
(2) For the purpose of proceedings under this Chapter "estate" and "property" of any deceased person shall be deemed not to include;
(a) any money or other movable property lying in any Bank to the credit of such deceased at the time of his death;
(b) the moneys represented by any share certificates and deposit certificates issued by any institution and remaining in the name of such deceased at the time of his death ;
(c) the moneys payable under a contract of insurance entered into by the deceased and subsisting on the date of his death whether, any nomination in respect thereof had been made under subsection (1) of section 544, or not.'.