The Widow, the Minors and the Mortgage
Mrs. S., a 72-year-old widow in Kandy, asks you to attest a sale of 15 perches in Kundasale to a cash buyer for LKR 18 million. She produces a 1989 deed in her late husband's name, a 2015 death certificate, and an affidavit signed by two neighbours listing the heirs as herself and three children. One child died in 2020 leaving two children aged 9 and 12; another child lives in Italy and has signed nothing. The land is shown as mortgaged to a bank by a 2013 deed; Mrs. S. says the loan was paid off but has no discharge. A 1972 deed shows an undivided one-quarter share in the husband's brother, who is in Canada. The buyer wants completion tomorrow and has brought LKR 18 million in cash. Mrs. S. says the family has 'sorted everything out' and asks you to prepare the deed.
1. What title and capacity issues must be resolved before you can attest the sale? Explain how each affects the deed.
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The starting point is the chain of title. The 1989 deed is in the husband's name; on his intestacy the widow and children take, and the predeceased child's two minors take by representation. An affidavit by neighbours is evidence of family status, not a substitute for probate, letters of administration or a court order. Because two heirs are minors, any deed affecting their shares needs lawful authority, normally a guardian with court sanction or court approval. The widow cannot safely convey the whole land as sole owner. The 1972 deed showing a one-quarter share in the brother must be reconciled: if the brother still owns it, he must join in the sale or the buyer receives only three-quarters. The 2013 mortgage must be discharged or the mortgagee must consent to the sale; a promise that the loan was paid is not enough. The notary should also call for the original mortgage bond, a survey plan, tax receipts and a title report. The deed needs correct recitals and all parties present or represented by a registered power of attorney. Only after these issues are resolved can the notary honestly read over and explain the deed.
2. How should you handle the cash payment and the buyer's demand for completion tomorrow?
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LKR 18 million in cash is both an AML red flag and a practical risk. The notary should insist on a bank transfer or banker's draft in the seller's name, verify the buyer's identity and beneficial ownership, record the source of funds and issue a receipt. If cash is accepted, the office must comply with the FTRA and FIU guidance applicable to notaries, including threshold reporting and record-keeping, rather than simply handing over the money. On timing, completion tomorrow is not possible while minors, an absent heir and a bank mortgage are unresolved. The notary can offer a conditional agreement, a power of attorney from the absent heir, or a later completion date, but must not attest a deed that cannot lawfully convey the whole title. The client's assurance that everything has been 'sorted out' should be recorded, together with the advice that the deed may be void or create future litigation. If pressure continues, the notary should decline to act and document the refusal.