Q & A | Daily News

Q & A

Power of attorney of foreign citizen

Question:

My mother has a plot of land in Negombo. She passed away recently. I have two sisters and three brothers. Our father has also passed away. Now two of my sisters are living abroad and they are not citizens of Sri Lanka. We are planning to sell the undivided plot of land. My three brothers in Sri Lanka have consented to the transaction. My questions are as below.

1. How can my sisters be involved in this transaction as they are living abroad?

2. Can they prepare legal documents as they are not citizens in Sri Lanka?

Ramya Negombo

Answer:

Your sisters can prepare power of attorneys and nominate someone to do the transaction on their behalf. Although your sisters are foreign citizens, they can be involved in this transaction as it is the intestate property of your deceased mother.


Last will

Question:

How should a person write a last will? What are the legal requirements that are obligatory for such a last will to be valid? Does a last will require witness endorsement? If witnesses are required, can such witnesses be relatives of the person writing the will? I request this information because there are many instances where when a person is not of sound mind due to old age or illness, other persons have produced fraudulent last wills and have used thumb prints of the person to endorse the false will.

Daily News Reader

Answer:

A last will can be executed by a person above 18 with sound mind. Section 4 of the Prevention of Frauds Ordinance has set out the requirements relating to the execution of last wills in Sri Lanka. These requirements are as follows:

1. The will or codicil must be in writing.

2. It must be signed at the foot or end thereof by the testator or some other person in his presence and by his direction

3. Such signature must be made or acknowledged by the testator either (a) in the presence of a licensed notary public and two or more witnesses or (b) in the presence of five or more witnesses.

4. The notary and the two witnesses or the five witnesses must be present at the same time.

5. The notary and the two witnesses must duly attest the execution or the five witnesses must subscribe the will in the presence of the testator.

The signature must be placed in the presence of a licenced notary public and two witnesses or five witnesses. If any of the witness is incompetent, the last will would be invalid. The notary public must be present at the same time and the both witnesses must be present when the signature is acknowledged.

Although the signature must be made in the presence of two witnesses, it is not necessary that they should actually see the testator write. It would be sufficient if they are in such a position that they may if they please, see him writing. In selecting a witness, no person should be indicated to whom or a wife or husband to whom any benefit is conferred under the will. If such a person attests the will, the beneficiary or the wife or husband of the beneficiary who attests the will can take nothing under the will.

However, a last will has to be produced in court for enforcement. If there is a fraud committed on a last will, the parties can challenge the last will when it is produced in court.


Obtaining a death certificate

Question:

If the death of a person is not registered and a death certificate not obtained due to negligence or some other circumstance, how can the children or close relative register such death and obtain a death certificate? What is the legal process that must be followed and how long will it take to obtain the death certificate? What action must be taken to transact matters in lieu of the death certificate where such certificate is a compulsory requirement?

Daily News Reader

Answer:

If a death has not been registered within three months of its occurrence, it can be registered.

The death can only be registered if a period of 25 years has not been lapsed since occurrence of such death.

Persons eligible to do this are as follows:

o Any party having interest of

o One of the parents

There is a specific declaration form which can be produced by a close relation present at the time of death or who took care of the deceased when he or she was ill for the last time or any other interested party.

However if the death certificate is required, it has to be provided.


Transferring ownership

Question:

What is the legal process for a deceased person’s children and next of kin to transfer ownership of property and monies in bank accounts to their names? What are the documents that are needed for legally transferring such properties? Can ownership of such property be transferred legally without the death certificate of the deceased?

Daily News Reader

Answer:

First, you have to check whether that person died leaving a last will. If he died without a last will, then the general law on intestate succession applies. According to that, half the property goes to the spouse and the other half to the children. If the value of the property is above Rs. 5,000,000 then his/her heirs should file a testamentary case to divide the property.

If it is below the said amount, the parties can share the immovable property according to the law of succession. If there are no nominees appointed for immovable properties such as fixed deposits, bank accounts, etc, each heir can claim his or her share by producing necessary documents such as marriage certificate, birth certificate, death certificate, etc. However a death certificate is necessary for legal proceedings.


Compensation for accident

Question:

My husband had his own garage. While he was travelling in a three wheeler on October 17, 2014, he met with a fatal accident (he was knocked down by a lorry). The two drivers were produced before the magistrate, but we didn’t receive any compensation from the Magistrate’s Court. Now I am unable to meet the education expenses of my two school-going children. As this accident occurred due to the gross negligence of the lorry driver, can I file a case for compensation?

Ruvanthi Habarduwa

Answer:

In such an instance, a money recovery case has to be filed in the District Court where the accident took place, within two years from the date of the accident. Here, the insurance companies of both the three-wheeler and the lorry should be made parties in your case. The compensation will be calculated according to the facts submitted by the companies. You can go to the Legal Aid Commission Centre where the accident took place to obtain assistance to file a money recovery case.


Employment issue

Question:

I worked in a garment factory as a Quality Controller for nearly three years. Due to an offensive and unpleasant situation in my workplace, I resigned from service and my resignation letter was accepted by the employer. I discussed this matter with several people and they advised me that I can’t get any relief as I voluntarily resigned from service. I have three school-going children. Can I go to the Labour Tribunal and seek relief?

Daily News Reader

Answer:

It is a general acceptance in law that when a workman voluntarily gives his resignation letter and the said letter of resignation is accepted by the employer, then the contract between the employer and the employee comes to an end and thereafter no relief can be sought. However, if you can establish that your resignation letter was obtained by your employer due to some compulsion, then it is not a voluntary resignation. A resignation letter obtained in a situation of unreasonable demotion, unreasonable transfer and unlawful vacation of post is not a voluntary resignation and you can seek relief in terms of the Industrial Dispute Act.


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