Assignment Question

“Inheritance is one of the key modes by which ownership of housing, land,

and property can be acquired and property belonging to a family devolved
on descendants. Property inheritance is also instrumental in realizing one’s
right to adequate housing. Yet, the significance of protecting inheritance
rights is often not highlighted by national and international human rights
structures. Today, many people are still unaware of their inheritance rights,
the importance of protecting them, and the manner and the procedure to be
followed in claiming their inheritance. Consequently, they fail to voice
concerns over any attempt to infringe their inheritance rights.”
Inheritance Rights of Children in Sri Lanka, Centre on Housing Rights and
Evictions (COHRE) Sri Lanka,
[Link]
Inheritence%20rights%20of%20children%20in%[Link]
Write a report relevant to the above statement highlighting legal issues
related to succession law in Sri Lankan General Law.
 Unlocking the Legacy
Inheritance
Inheritance refers to property acquired through the laws of descent and distribution upon the
death of an individual. Property inheritance is a type of inheritance, which refers specifically to
the transfer of property, including land, real estate, and other assets, from one individual to
another upon their death.1 This plays an important role in the realization of the right to adequate
housing by providing stability, economic autonomy, and a foundation for wealth transfer.

This broad legal concept can be mainly divided into two main categories, testate and intestate law.

Testate Law
Testate law means when a person dies leaving a valid last will or testament, the property will be
devolved among nominated parties according to the testator’s wishes.2

Intestate Law
Intestate law means when a person dies without leaving a valid last will or testament, the
property will be distributed among his heirs according to the General Law or applicable Personal
Law.3 These laws establish a hierarchy of heirs and dictate how the estate should be divided. This
is only divided among blood relatives and legal relatives like spouses.

“A person may die testate or intestate. When he leaves a will bequeathing property, the heir
takes it by testate succession. Where a person leaves no last will the laws of intestate succession
operate.”4

1
Legal information institute (lii), 'Inheritance' (Cornell Law School, June 2020)
<[Link] accessed 23 May 2024.
2
Dickson Forhlich Phillips Burgess, 'What is the Difference Between Testate and Intestate?' (Dicksonlegal, 20 April
2023) <[Link] 23 May
2024.
3
Ibid.
4
HW Tambiah, Principle of Ceylon Law (H.W. Cave 1972) 308.
The Importance of Protecting Inheritance Rights
Protecting inheritance rights is significant for a variety of reasons, encompassing legal,
economic, and social dimensions.

Legal
Mainly according to the testate succession, protecting inheritance rights ensures that the wishes
of the deceased, as outlined in their will are respected and followed. Further, clear inheritance
rights in both testate and intestate, reduce the potential for conflicts among heirs and other
interested parties. 5

Economic
Through protecting human rights, ensuring that assets are transferred smoothly from one
generation to the next, which is vital for the financial stability of heirs. By this, family wealth is
maintained and preserved across generations, contributing to long-term financial security and
economic mobility for descendants.

Social
Legal protection of inheritance rights promotes fair distribution of assets, preventing any unjust
deprivation of property, which is especially important for vulnerable groups like surviving
spouses, children, and other dependents.6

Overall, the protection of inheritance rights is crucial for maintaining legal order, economic
stability, and social justice. It provides a structured approach to asset transfer which respects the
wishes of the deceased and supports the well-being of the heirs.

5
Florencio A. Gramajo and José Fernando García, 'Guatemala: Preserving the Family Legacy: The Importance of
Inheritance Planning' (theworldlawgroup, 27 February 2024)
<[Link]
inheritance-planning> accessed 23 May 2024.
6
Donna Fuscaldo, '4 Reasons Estate Planning Is So Important' (Investopedia, 31 December
2023) <<[Link]
[Link]> accessed 23 May 2024.
Overview of Inheritance Laws in Sri Lanka
In Sri Lanka, this testate division of inheritance is mainly based on Roman Dutch Law. The
sources of succession related to testate law are Prevention of Fraud Ordinance No. 07 of 1840,
Wills Ordinance No. 21 of 1844, Wills Amendment No. 29 of 2022, Civil Procedure Code No.
02 of 1889- XXXVIII Chapter and Civil Procedure Amendment Act No. 17 of 2022.

In Sri Lanka, the intestate division of inheritance is mainly based on General Law,
Kandyan Law, Thesawalamai Law and Muslim Law. The sources of succession related to
intestate law are Matrimonial Rights and Inheritance Ordinance No. 15 of 1876, Civil Procedure
Code - XXXVIII Chapter, Kandyan Law Ordinance No. 39 of 1938, The Jaffna Matrimonial
Rights and Inheritance Ordinance No. 1 of 1911 and Muslim Intestate Succession Ordinance No.
10 of 1931.
Constraints of Inheritance Rights within National Legal
Frameworks

The Sri Lankan laws of inheritance can, for the most part, be considered fair. But, they are not
drafted using a human rights approach, resulting in the perpetuation of some unfair practices.
Notably, Chapter 3 of the Constitution of Sri Lanka (1978), which addresses fundamental
human rights, does not emphasize the significance of protecting inheritance rights.

In terms of testate succession, individuals have the freedom to determine how their property
should be inherited.7 As long as the last will is executed in accordance with legal requirements,
the property can be fully or partially disposed of to any beneficiary chosen by the testator.8 The
Wills Ordinance9 applies to all communities within Sri Lanka. This removes disabilities imposed
by customary laws on women and allows all individuals to dispose of their property to
beneficiaries of their choice, including illegitimate children.10

In terms of intestate succession, the General Law11 on Sri Lanka recognizes equal inheritance
rights for spouses and both female and male children. In section 24, all children are defined as
those biologically fathered or legally adopted, inherit equally from their parent's intestate
property. The common law presume that "children" means legitimate children which applied
limitations on inheritance rights for illegitimate children. 12Specifically, section 33 states that
illegitimate children can inherit from their intestate mother but not from their father or the
mother's relatives.13

7
De Silva v Seneviratne (1981) 2 Sri LR 7.
8
Section 2 of the Wills Ordinance No. 21 of 1844.
9
No. 21 of 1844.
10
Wimalawathie v Openayake (1971) 74 NLR 308; Lily Perera v Chandrani Perera (1990)1 Sri LR 246.
11
Matrimonial Rights and Inheritance Ordinance No 15 of 1876.
12
Ranjan Anno Helan Menaka, 'Extra Marital Child’s Inheritance Rights on Parents Intestate Property Under Sri
Lankan Law' (Seajbel, June 2013) <[Link]
Child%E2%80%99s-Inheritance-Rights-On-Parents-Intestate-Property-Under-Sri-Lankan-Law-Ranjan-Anno-
[Link]> accessed 23 May 2024.
13
Karonchihamy v Angohamy (1904) 8 NLR p.281; W. Herman Silva et al v W. Kainerishamy et al 57 NLR 567.
This discrimination is based on the legal principle "pater est quem nuptiae demonstrant" (the
father is he whom the marriage indicates) and "mater semper certa est" (the mother is always
certain). Such laws discriminate against children born out-of-wedlock, treating them as having
only one lawful parent.14 This legal stance unjustly penalizes innocent children born out-of-
wedlock, without distinguishing between degrees of "illegitimacy" such as incestuous,
adulterous, or simply out-of-wedlock children. Similarly, the father of an illegitimate child has
no right of succession to the property of the child.15

14
Savitri Goonesekere, The Sri Lanka Law on Parents and Child (2nd edn, MD Gunasena & CoLtd, 2001) 84.
15
Banda v Banda 19 NLR 126; Kuma v Banda 21 NLR 294.
Inheritance Rights on the International Stage
While international treaties and conventions may not explicitly outline the right to inheritance, it
can be deduced from the principles of equality, non-discrimination, and the right to adequate
housing.

Article 25(1) of the UDHR,16 everyone has the right to a decent standard of living, including
essential needs like food, housing, healthcare, and social services.

The most important convention is Article 11(1) of the ICESCR.17 It underscores that States
Parties to this Covenant acknowledge everyone's right to an adequate standard of living,
encompassing essentials like food, clothing, and housing, with a commitment to ongoing
improvement.

One of the initial global agreements acknowledging children's right to housing is Principle 4 of
the UNCRC,18 which is “…the child shall have the right to adequate nutrition, housing,
recreation and medical services.”

Article 27(3) of the UNCRC, States must support parents and guardians in fulfilling children's
rights, providing material assistance like nutrition, clothing, and housing as needed.

Paragraph 273 and 274(a) of the Beijing Declaration and Plan of Action highlight guarantees
equal right to succession and ensures equal right to inherit, regardless of the sex of the child.

Though these highlight the right to adequate housing, specifically children regardless their birth
and sex, the significance of protecting inheritance rights is often not highlighted in international
human rights texts and standard setting documents.

16
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III).
17
United Nations (General Assembly). (1966). International Covenant on Economic, Social, and Cultural Rights.
Treaty Series, 999.
18
United Nations Declaration on the Rights of the Child; Declaration of the Rights of the Child, G.A. res. 1386
(XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354 (1959).
Exploring Public Awareness and Protection Gaps
There are several reasons why many people are still unaware of their inheritance rights.

Lack of legal education regarding their inheritance rights, either through formal education or
community awareness programs.

Legal procedures for claiming inheritance can be complex and difficult to understand,
especially without legal assistance. This complexity can deter people from pursuing their rightful
claims.

Confusion in inheritance laws which vary significantly depending on the jurisdiction and the
applicable legal system (General law and personal laws).

Gender inequality in some societies, lead women and other marginalized groups deliberately
kept uninformed about their inheritance rights.

Many people cannot afford legal assistance to understand or claim their inheritance rights.

Individuals in rural or remote areas may have limited access to legal resources and information
compared to those in urban centers.

Given these factors, many people are unaware of their inheritance rights and the necessary
procedures to protect them. As a result, they fail to voice concerns over any attempt to infringe
their inheritance rights.
Strengthening Inheritance Rights in Sri Lanka
Firstly, In Sri Lanka, the Constitution remains silent in both inheritance rights and right to
adequate housing. It only recognizes the freedom of choosing one’s residence. Article 14 (1) (h)
of the Constitution demonstrates, “Every citizen is entitled to the freedom of movement and of
choosing his residence within Sri Lanka.” Therefore, including the right to adequate housing as a
fundamental right in Sri Lanka is necessary to strengthen inheritance rights.

Secondly, amending existing laws by aligning with international human rights standards
will strengthen inheritance rights.

Ensuring adequate housing is a fundamental human right recognized by international treaties

such as the ICESCR19. As a signatory to the ICESCR, Sri Lanka is obligated to uphold the right
to adequate housing outlined in Article 11(1).20 This includes recognizing, respecting, and
fulfilling this right in accordance with the Covenant. Sri Lanka must utilize its available
resources to progressively realize these rights, employing legislative measures as necessary.

Further, Sri Lanka must adhere to the obligations outlined in the CRC ,21 which parallel those of

the ICESCR. Article 4 of the CRC mandates that, States parties enact all appropriate legislative,
administrative, and other measures to ensure the realization of rights enshrined within it.
Therefore, Sri Lanka needs to take steps align with Article 27(3) 22 and Article 223 to ensure
adequate housing for children.24

By addressing these areas, Sri Lanka can significantly enhance its obligations to provide
adequate housing and protect inheritance rights.

19
United Nations (General Assembly). (1966). International Covenant on Economic, Social, and Cultural Rights.
Treaty Series, 999, 171.
20
Ibid, Article 11(1).
21
Convention on the rights of the child (1989) Treaty no. 27531. United Nations Treaty Series, 1577.
22
Ibid, Article 2.
23
Convention on the rights of the child (1989) Treaty no. 27531. United Nations Treaty Series, 1577, Article 2.
24
Pubudini Wickramaratne Rupesinghe, Inheritance Rights of Children in Sri Lanka (Wits Associates (Pvt)
Ltd 2008) 6-13.
 Conclusion
Sri Lanka, like many nations, faces challenges in ensuring the protection and realization of
inheritance rights. While existing legal frameworks provide a foundation, gaps in public
awareness hinder individuals from asserting their rightful claims. To address these challenges,
Sri Lanka must prioritize legal reforms that recognize inheritance rights. This guarantees
adequate housing as a fundamental human right. This necessitates aligning domestic legislation
with international treaties and conventions. By implementing comprehensive measures to raise
public awareness and provide legal assistance can strengthen inheritance rights and ensure access
to adequate housing. Through this, Sri Lanka not only fulfill its international obligations but also
promote social justice, economic stability, and intergenerational equity.
 References
Primary Sources

Statutes/Statutory Instruments

1. Beijing Declaration and Platform for Action (1995).

2. Constitution of Democratic Socialist Republic of Sri Lanka (1978).

3. Convention on the rights of the child (1989) Treaty no. 27531. United Nations Treaty
Series, 1577.

4. Matrimonial Rights and Inheritance Ordinance No. 15 of 1876.

5. United Nations (General Assembly). (1966). International Covenant on Economic,

Social, and Cultural Rights. Treaty Series, 999, 171.

6. Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217
A(III).

7. Wills Ordinance No. 21 of 1844.

Case Laws

1. Banda v Banda 19 NLR 126.

2. De Silva v Seneviratne (1981) 2 Sri LR 7.
3. Karonchihamy v Angohamy (1904) 8 NLR p.281.
4. Kuma v Banda 21 NLR 294.
5. Lily Perera v Chandrani Perera (1990) 1 Sri LR 246.
6. W. Herman Silva et al v W. Kainerishamy et al 57 NLR 567.
7. Wimalawathie v Openayake (1971) 74 NLR 308.
Secondary Sources

Books

1. Goonasekara SWE, Sri Lanka Law on Parents and Child (MD Gunasena & CoLtd 2001).
2. Rupesinghe PW, Inheritance Rights of Children in Sri Lanka (Wits Associates (Pvt)
Ltd 2008).
3. Tambiah HW, Principle of Ceylon Law (H.W. Cave 1972).

Online Sources

1. Dickson Forhlich Phillips Burgess, 'What is the Difference Between Testate and
Intestate?' (Dicksonlegal, 20 April 2023) <[Link]
differences-between-testate-and-intestate/> accessed 23 May 2024.
2. Fuscaldo D, '4 Reasons Estate Planning Is So Important' (Investopedia, 31 December
2023) <[Link]
[Link]> accessed 23 May 2024.
3. Gramajo FA and Fernando J, 'Guatemala: Preserving the Family Legacy: The Importance
of Inheritance Planning' (theworldlawgroup, 27 February 2024)
<[Link] the-
importance-of-inheritance-planning> accessed 23 May 2024.
4. Legal information institute (lii), 'Inheritance' (Cornell Law School, June 2020)
<[Link] accessed 23 May 2024.
5. Menaka RAH, 'Extra Marital Child’s Inheritance Rights on Parents Intestate Property
Under Sri Lankan Law' (Seajbel, June 2013) <[Link]
content/uploads/2014/07/Extra-Marital-Child%E2%80%99s-Inheritance-Rights-On-
Parents-Intestate-Property-Under-Sri-Lankan-Law-Ranjan-Anno-Helan-
[Link]> accessed 23 May 2024.