The Estranged Daughter and the False Recital
Mr. A., 68, instructs you to prepare his last will. He married his first wife under the general law; she died in 2000, leaving two children, R and D. In 2005 he married B under the general law; they have one child, now 14. His assets are a house in Colombo bought in 1998 by a deed in his sole name, bank deposits of LKR 12 million, and a five-acre coconut land in Puttalam inherited from his father in 1990. He wants the house and deposits to B, the coconut land to R, and nothing to D, from whom he is estranged. He asks you to insert a clause: 'I confirm that B contributed one-half of the purchase price of the Colombo house', although she did not. He also wants B appointed executor and guardian of the minor child. He refuses to discuss D and says he has no other wills.
1. Advise on the validity and effect of the proposed will, including the false recital.
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Under the general law, testamentary freedom is broad; D has no automatic forced share merely because she is a child. But the will must be valid: signed by the testator at the foot, attested by two witnesses who are not beneficiaries, and made with capacity and knowledge and approval of the contents. The false recital is the central problem. A notary must not insert a statement he knows to be untrue. It could amount to fraud, expose the will to challenge, mislead the executor or court, and create an implied trust or equitable claim that Mr. A did not intend. If B truly contributed, the fact should be proved by documents; if not, the clause must be omitted. The inherited coconut land is separate property and can be devised to R; the house and deposits can go to B. The notary should ask about prior wills, any divorce, and any dependent, and keep a file note of the instructions and advice.
2. What should you advise about D's position and the appointment of B as executor and guardian of the minor?
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D can be disappointed but estrangement alone is not a ground to invalidate the will. The notary should warn Mr. A that D may challenge on undue influence, fraud or lack of capacity, and that the false recital would make such a challenge easier. The notary should not accept instructions to exclude D without recording the reasons and confirming the testator's capacity. B can be appointed executor and testamentary guardian; as mother she is already the natural guardian of the 14-year-old. Because B is both executor and guardian, the will should consider an independent co-executor or trustee and clear provisions for the minor's maintenance and education, so that the minor's interests are protected. The will should be read over and explained, properly witnessed, and a copy retained in the protocol. If Mr. A later changes his mind, a codicil or new will must follow the same formalities.