The non-availability of the death certificate to prove the death of a person to institute
testamentary proceedings is a problem for successors. If the death has occurred by an act
of the armed forces, and the body of the deceased was identified, an inquest would have
been held under the emergency regulations and a death certificate issued. But in most
other cases the persons are either in the missing list or there is no proper death certificate. All
actions taken by the next of kin, in this regard, may have been futile.
An amendment to the Births and Deaths Ordinance giving powers to the Registrar of Births
and Deaths to hold inquiries and to register the death may be a solution to this problem.
Testamentary proceedings will have to be instituted in cases where a person dies leaving a
Will. It is the duty of the person who has the Will at the time of the death of the testator, or
who finds the Will after the death, to produce the Will in the District Court of the district in
which the finder/successor resides or the District Court of the district in which the testator
died. As courts in the Northern Province did not function for a substantial period in 1990s, the
parties could easily explain any delay and could institute testamentary proceedings.
If a person dies without making a Will or if the Will cannot be found and the value of the
property exceeds Rs.500,000.00, an application for the grant of administration should be filed
in the District Court which has jurisdiction. Delay in filing these applications due to the
displacement of the applicant or the non-functioning of courts could be explained. If all
documents are available, the internally displaced persons could institute proceedings in
court explaining their delay. Refugees in foreign countries could also institute action by
providing Power of Attorney.
A testamentary procedure in court will not be a lengthy proceeding unless the Will is
challenged or there are legal problems of succession of property such as the applicability of
personal laws. Challenge of a Will and problems in succession arise only in few cases and it
should be determined by a court rather than by another mechanism. Even though fair
numbers of cases are filed in the District Courts it will not take long to conclude. But we
suggest that the provision for the abatement of actions be suspended in respect of pending
testamentary cases.
14) A married woman’s incapacity to deal with her property without her husband’s consent
under Tésawalamai
Section 6 of the Jaffna Matrimonial Rights and Inheritance Ordinance prohibits a married
woman from disposing or dealing with her immovable separate property without the written
consent of her husband.
The applicable laws are: Tésawalamai; Married Women’s Property Ordinance No.18 of 1923;
Jaffna Matrimonial Rights and Inheritance Ordinance.
Once a valid marriage has been contracted by a man under Tésawalamai, there are
specific consequences that affect the legal rights of both spouses. The husband is under a
legal obligation to support his wife and cannot claim that he should be maintained by the
wife’s property when he is unable to maintain himself through illness or otherwise. In contrast,
a husband who is not subject to Tésawalamai could claim for maintenance under section 26
of the Married Women’s Property Ordinance and the Maintenance Ordinance. A married
woman governed by the Tésawalamai is not a femme sole; she is subject to the marital
power of her husband. The right of the husband to give his consent to the alienation or
mortgage of his wife’s immovable property is an incident of his marital power.
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