- Money Matters
- Posted: Mon, Aug 13 2012. 9:26 PM IST
Did You Know | When a bequest
fails and when it doesn’t
Bequests hold valid under certain
circumstances and are invalid under others
Saurabh Kumar
A will—a legal write-up declaring who shall inherit assets belonging to the
person making the will—names people/organizations who would inherit the
property. However, such bequests hold valid under certain circumstances and are
invalid under others.
When a bequest can’t fail
If a person making the will or testator names two inheritors jointly and one of them dies before the testator. Here, the second inheritor will stand to inherit the entire bequeath.
Let’s say a lineal descendant (such as a child, grandchild, great grandchild and so on) named in a will dies in the lifetime of the testator, but if the named inheritor’s descendants (his/her child or grandchild and so on) is still living, then the bequest will not fail. Instead, it will take effect immediately after the death of the testator and the surviving descendant will get the property.
Similarly, if a bequest is made to one person for the benefit of another, the bequest will not fail upon the death of the person to whom the bequest is made. For example, if a bequest is made on a guardian for the benefit of a minor child and the guardian dies before the child becomes a major, then the bequest will not fail.
In case it is made on a class of persons, some of whom are dead, the bequest will go to those members of the class who are alive. Say, M bequests his property to “all children of N” and some of N’s children are dead. In that case, those children who are alive upon the death of M will receive the bequest.
If a bequest is made with a charitable intention, such as donation to an orphanage, then the bequest does not fail.
When a bequest can fail
If the person to whom the bequest is made dies before the testator himself, the bequest will not take effect. Such property/assets will either go to another person named in the will or form a part of the residue of the testator’s property. Thus, this does not amount to the entire will being rendered invalid. Residue is the part that remains after all bequests are made.
For example, if A bequeaths 10 shares of X Ltd to B and B dies during the lifetime of A, then these 10 shares of X Ltd will form part of the residue. However, if A had said that the 10 shares of X Ltd will go to B, and if B is not alive then to C, then in case B dies during the lifetime of A, the 10 shares of X Ltd will go to C and will not form part of the residue.
When a bequest can’t fail
If a person making the will or testator names two inheritors jointly and one of them dies before the testator. Here, the second inheritor will stand to inherit the entire bequeath.
Let’s say a lineal descendant (such as a child, grandchild, great grandchild and so on) named in a will dies in the lifetime of the testator, but if the named inheritor’s descendants (his/her child or grandchild and so on) is still living, then the bequest will not fail. Instead, it will take effect immediately after the death of the testator and the surviving descendant will get the property.
Similarly, if a bequest is made to one person for the benefit of another, the bequest will not fail upon the death of the person to whom the bequest is made. For example, if a bequest is made on a guardian for the benefit of a minor child and the guardian dies before the child becomes a major, then the bequest will not fail.
In case it is made on a class of persons, some of whom are dead, the bequest will go to those members of the class who are alive. Say, M bequests his property to “all children of N” and some of N’s children are dead. In that case, those children who are alive upon the death of M will receive the bequest.
If a bequest is made with a charitable intention, such as donation to an orphanage, then the bequest does not fail.
When a bequest can fail
If the person to whom the bequest is made dies before the testator himself, the bequest will not take effect. Such property/assets will either go to another person named in the will or form a part of the residue of the testator’s property. Thus, this does not amount to the entire will being rendered invalid. Residue is the part that remains after all bequests are made.
For example, if A bequeaths 10 shares of X Ltd to B and B dies during the lifetime of A, then these 10 shares of X Ltd will form part of the residue. However, if A had said that the 10 shares of X Ltd will go to B, and if B is not alive then to C, then in case B dies during the lifetime of A, the 10 shares of X Ltd will go to C and will not form part of the residue.
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