Sri Lanka Notary's Preliminary Exam common mistakes
Sri Lanka Notary's Preliminary Exam · Understand the traps and how to avoid them.
Treating the notary's role as a mere formality and attesting an instrument without first satisfying oneself that the executant appeared personally, was identified by the notary, and had capacity, reading the deed aloud and explaining its effect.
Candidates learn the offence sections and the duty to attest, but the statutory pre-conditions of a valid notarial attestation (personal appearance, identification, reading and explanation, absence of coercion or fraud) are scattered across the Notaries Ordinance and are rarely tested as a single checklist; candidates therefore memorise the signature block and skip the sequence that must precede it.
What to do instead
Build a fixed pre-attestation checklist in the statutory order: appearance and identification of the executant, capacity and freedom check, reading of the instrument in a language the executant understands, explanation of legal effect, questions to confirm understanding and voluntariness, signature in the notary's presence, notary's signature, date, seal and register entry. Recite it aloud before every practice attestation and cite the enabling provision for each step.
Drafting a deed of transfer or lease without verifying the vendor's title and the encumbrances on the land, and without checking that the land is not subject to a restriction on alienation, a caveat, or a pending partition action, so the instrument later fails on registration.
Candidates conflate 'the parties agreed' with 'the notary may lawfully attest'; the duty to investigate title and encumbrances before attestation is a professional obligation, not a conveyancing nicety, and candidates under-prepare because they treat the Land Registry as a post-signature formality.
What to do instead
Before drafting, obtain and read the title documents, the current extract of the land register, the survey plan, and any lis pendens or caveat. Note the exact folio and volume, the extent, the boundaries and every encumbrance in the deed recitals. Practise drafting a schedule of title observations and a requisitions letter, and always state the source register reference in the deed.
Applying the general law of contract to notarial and land transactions without noticing that a particular transaction requires a notarial instrument, or a writing, or registration to be effective, and advising that an informal agreement is enforceable.
Candidates study contract formation (offer, acceptance, consideration, intention) in isolation and never map the specific statutory formalities onto the transaction type; the default assumption that any agreement is enforceable once the elements are present is the trap.
What to do instead
Maintain a one-page formality table by transaction: sale of land, lease over one year, mortgage, gift, promise of marriage, arbitration agreement, company share transfer, each with the required form (notarial instrument, writing, registration) and the consequence of non-compliance (void, unenforceable, inadmissible). Test every problem against the table before discussing remedies.
Confusing the succession rules applicable to different communities and different property, for example applying the general law of intestacy to a Kandyan or Muslim estate, or misidentifying the share passing to a surviving spouse and children.
Sri Lankan succession is plural: the general law, the Kandyan law, the Thesawalamai and the Muslim law each govern different persons and property, and candidates memorise one scheme and apply it universally; the intestate share fractions are also frequently misremembered.
What to do instead
Learn a decision tree: identify the deceased's community and domicile, the nature and situs of each asset (including acquired property versus ancestral property where relevant), then select the governing regime. Write out the intestate distribution for each regime with worked examples using real fractions, and check the current statute and case law for each regime rather than relying on memory.
Drafting a will or trust without testing it against the formal requirements of execution and attestation, the limits on testamentary freedom (such as the rights of dependants and the rules on undue influence and fraud), and the rules against perpetuities and illegal purposes in a trust.
Candidates treat wills and trusts as drafting exercises and focus on the dispositive clauses, overlooking that a defect in execution or attestation voids the whole instrument, and that a trust with an uncertain object or an unlawful purpose is void however well drafted.
What to do instead
Before drafting, run a validity screen: testator's age, capacity, freedom from undue influence, formal execution and attestation requirements, and the position of dependants. For trusts, identify settlor, trustee, beneficiary, trust property and intention with certainty, check perpetuity and illegality, and confirm the vesting and registration requirements. Draft a model will and a model trust deed and annotate each clause with the rule it satisfies.
Ignoring the anti-money-laundering and professional-ethics dimension of a conveyancing or company transaction, for example acting on a cash purchase through a corporate vehicle without customer due diligence, source-of-funds enquiry, or a suspicious transaction report.
Candidates compartmentalise ethics as an exam topic and AML as a compliance topic, and do not apply either to the concrete fact pattern; the notary is a gatekeeper and the failure is one of applied judgement, not of reciting the legislation.
What to do instead
For every transaction problem, add a mandatory AML paragraph: identify the client and beneficial owner, verify identity, establish source of funds and source of wealth, assess risk, record the decision, and state when a suspicious transaction report must go to the Financial Intelligence Unit. Practise on fact patterns involving offshore companies, cash, rapid resale and third-party payments.
Drafting a company instrument, share transfer or securities document without checking the company's constitution, the directors' authority, the share transfer restrictions, and the stamp duty and registration consequences, so the instrument is ineffective or the company can refuse registration.
Candidates learn company law as a set of statutory rules and do not connect them to the notarial act; the pre-emption rights, board approval and instrument-of-transfer requirements are precisely the points the examiner tests, and they are easily missed when the candidate focuses only on the statutory form.
What to do instead
Before drafting any company instrument, obtain the constitution, the register of members, the board minutes authorising the transaction, and any shareholders' agreement. Check pre-emption and transfer restrictions, complete the instrument of transfer, compute stamp duty, and note the registration steps and deadlines. Keep a company-transaction checklist and use it on every problem.
Conflating the notary's civil liability, disciplinary liability and criminal liability, and failing to identify the specific offence and the specific disciplinary consequence when a notary attests a false instrument or prepares a deed with a fraudulent intent.
Candidates revise the offence provisions and the disciplinary rules in separate sessions and never build a comparison; when a fact pattern asks 'what is the notary's exposure', they answer with a single undifferentiated consequence.
What to do instead
Build a three-column table: act or omission, civil consequence (damages, indemnity, action by the aggrieved party), disciplinary consequence (complaint, inquiry, suspension, removal from the roll), and criminal consequence (offence, section, penalty). Fill it with the specific provisions and test it against past-style fact patterns involving false attestation, backdating and conflict of interest.
Treating civil procedure as background and failing to identify the correct court, the correct mode of execution or proof of a notarial instrument, and the limitation period applicable to a claim arising from a notarial act.
Candidates concentrate on substantive law and leave procedure to the last week; the rules on the evidentiary value of a notarial instrument, the requirement of notice, and the limitation periods are then recalled vaguely and applied to the wrong court or the wrong period.
What to do instead
For each cause of action in the syllabus, write the court of first instance, the limitation period, the mode of proof and the effect of a notarial instrument as evidence. Practise short procedural problems: which court, which period, which notice, which remedy. Verify each entry against the current statute and rules rather than memory.
Drafting instruments with vague or ambiguous operative language, for example describing the property by a popular name rather than by the registered folio, extent and boundaries, or leaving the consideration, the parties' capacities or the recitals incomplete, so the deed is unregistrable or litigable.
Candidates write in general prose and do not appreciate that a notarial instrument must be self-contained and capable of registration; the habit of summarising rather than specifying is carried over from essay writing.
What to do instead
Adopt a fixed deed architecture: parties with full names, addresses and capacities; recitals establishing title and authority; operative clauses with the property identified by folio, volume, extent and boundaries; consideration and receipt; covenants; attestation and schedule. Draft model deeds clause by clause, have them reviewed against the registration requirements, and always read the final draft as if you were the registering officer.