Void Bequests | Family Law - CLAT PG PDF Download

Bequest to a Person by Particular Description Who is Not in Existence at Testator's Death

When a bequest is made to a person described in a specific way, and no one exists at the time of the testator's death who fits that description, the bequest becomes invalid.

Illustrations

• A bequeaths 1,000 rupees to the eldest son of B. At the time of the testator's death, B has no son. In this case, the bequest is considered void.
• A bequeaths 1,000 rupees to B for his lifetime, and after B's death, to the eldest son of C. If at the time of the testator's death, C has no son, the bequest is initially invalid. However, if a son is born to C during B's lifetime, the legacy will go to C's son upon B's death.

Bequest to a Non-Existent Person Subject to Prior Bequest

• When a bequest is made to a person who is not alive at the time of the testator's death, and it is subject to a prior bequest in the will, the later bequest will be considered invalid unless it includes the entire remaining interest of the testator in the bequeathed item.

Illustration

• (i) For example, if property is bequeathed to A for his lifetime, then to A's eldest son for his lifetime, and after that to A's eldest grandson. If at the time of the testator's death,A has no son, the bequest to A's eldest son is to a person who does not exist at the testator's death. Since it is not a bequest of the entire remaining interest of the testator, the bequest to A's eldest son for his lifetime is void.

Rule Against Perpetuity

The Rule Against Perpetuity states that a bequest is not valid if the vesting of the bequeathed item could be delayed beyond the lifetime of certain individuals and a minor's age. Specifically, the vesting must occur within the lifetime of one or more persons alive at the testator's death, plus the minority of a person who is alive at the end of this period. If the bequest fails to meet this criterion, it is considered void.

Illustration

• A fund is left to A for his lifetime, then to B for his lifetime, and finally to the sons of B who first reach the age of 25.
• A and B are alive when the testator passes away.
• Since the son of B who reaches 25 first could be born after the testator's death, there is a possibility that the vesting could be delayed beyond the lifetimes of A and B, as well as the minority of B's sons.
• Therefore, the bequest after B's death is considered invalid.

Bequest to a Class with Some Members Affected by Sections 113 and 114

When a bequest is made to a class of people, and some of those individuals are affected by the rules in sections 113 or 114, the bequest will be considered void only for those specific individuals, not for the entire class.

Illustration

• A fund is left to A for life, and after A's death, it is to be given to all of A's children who reach the age of 25.
• Since A survives the person who made the will (the testator), and some of A's children are alive at the time of the testator's death, these children must reach the age of 25 within the allowed timeframe for a bequest.
• However, A may have children born after the testator's death, and some of these children might not reach the age of 25 until more than 18 years after A's death.
• Because of this, the bequest to A's children is not valid for any child born after the testator's death.

Bequest to Take Effect on Failure of Prior Bequest

When a bequest in favor of a person or a class of persons is deemed void due to the rules in sections 113 and 114, any subsequent bequest in the same will that is intended to take effect after the failed bequest is also considered void.

Illustrations

• (i) A fund is left to A for his lifetime, and after A's death, it is to be given to his sons who are the first to reach the age of 25. If none of A's sons qualify, the fund will go to B. Both A and B are alive when the testator passes away.
• The bequest to B is meant to occur after the bequest to A's sons. However, the bequest to A's sons is invalid according to section 114.
• As a result, the bequest to B also becomes void.

Effect of Direction for Accumulation

When a will specifies that the income from any property should be accumulated (saved or added to the principal) for a period longer than eighteen years from the date of the testator's death, such a direction is generally considered void. However, there are exceptions where such directions are valid.

Exceptions to the Rule

• Directions for accumulation are valid if they are intended for the payment of debts of the testator or any other person mentioned in the will.
• Accumulation is also permissible for providing portions (shares or inheritances) for the children or further descendants of the testator or any other person under the will.
• Directions aimed at the preservation or maintenance of any bequeathed property are also valid.

Bequest to Religious or Charitable Uses

• A person with a nephew or niece, or any closer relative, cannot bequeath property to religious or charitable uses unless certain conditions are met.
• The will must be executed at least twelve months before the person's death.
• The executed will must be deposited within six months in a legally designated place for the safe custody of living persons' wills.
• Exception: This provision does not apply to Parsis.
• Illustration: If a person with a nephew makes a bequest for various charitable purposes (e.g., relief of poor people, maintenance of sick soldiers, erection or support of a hospital, education of orphans, support of scholars, erection or support of a school, building and repairing a bridge, making roads, erection or support of a church, repairs of a church, benefit of ministers of religion, formation or support of a public garden), all these bequests would be considered void if not executed and deposited as required.