The One-Third Ceiling
Mr. Fernando is asked to prepare and attest the will of a 70-year-old Muslim businessman whose estate includes land and quoted shares worth about Rs. 120 million. The testator wants 50% to his only son and 50% to a named charity, leaving his wife and two daughters nothing. He says his wife has her own property and 'the daughters will marry'. He is lucid but has short-term memory lapses. The proposed witnesses are the son's business partner and the notary's clerk. The testator has no written instructions; the son has drafted a two-page will. The notary knows the family and the son has promised future work. The testator asks whether the will can be signed immediately because he is travelling.
1. What issues of testamentary capacity, formal validity and applicable succession law arise, and what should the notary do before drafting?
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Capacity: the testator must know the nature of the act, the extent of his property and the persons who have natural claims. Short-term memory lapses require the notary to take careful instructions, perhaps with a doctor's certificate if doubt persists, and to record the assessment. Formalities: a will must be in writing, signed by the testator, and attested by two witnesses present at the same time; the notary should not use the son's business partner or his own clerk if that creates an appearance of influence. Succession law: as a Muslim, the testator's power to dispose by will is not unlimited; under the Muslim law applicable in Sri Lanka, testamentary disposition is confined to one-third of the net estate, and a bequest to an heir is generally ineffective without the consent of the other heirs. The notary must explain this before drafting. He should also obtain written instructions and confirm there is no earlier will.
2. Can the notary give effect to the 50/50 split? Explain how he should advise and draft.
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No, not as a 50/50 split. The son is an heir; a bequest to him beyond his intestate share is a bequest to an heir and is generally invalid without the consent of the other heirs. The charity is a non-heir and may receive up to one-third of the net estate. The notary should explain that the remaining two-thirds will devolve under Muslim intestate succession, giving the wife and daughters their shares. He can draft a will giving one-third to the charity, or such lesser fraction as the testator chooses, and leaving the rest to intestacy. If the testator wants to benefit the son, he should understand that the son's inheritance will come under the intestacy rules, not from an excessive will. The notary should record the advice and the testator's revised instructions. He must not draft a document that he knows cannot take effect as written.
3. What should the notary do if the testator insists on signing the son's draft and asks him to 'just attest'?
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If the testator insists, the notary should not 'just attest'. Attestation is not a rubber stamp; the notary must satisfy himself of capacity and lawful content. He should explain the one-third ceiling and the rule on bequests to heirs again, offer to draft a compliant will, and if the testator refuses, decline to act. If he nevertheless attests a will that on its face exceeds the disposable third and benefits an heir, he risks disciplinary action and civil liability, and the will may be partially invalid. He should also avoid the proposed witnesses: the son's partner is connected with the beneficiary, and the notary's clerk may create an appearance of impropriety. He should return the son's draft and require independent instructions. A careful file note of the refusal protects him.