Everything you need to know about Lapsing of legacies

(i) Will is void, ab initio

The testator makes the will. Therefore, the will is in existence. However, it cannot be given effect to because it is void, ab inito. Void means, as if no will is made. Ab initio makes as if no will is made from the inception/beginning. For example, a testator makes an unprivileged will. However, the Will is not signed. The entire Will is inoperative from the time of making it.

(ii) Void Bequests

The testator makes a Will. It is valid also. Therefore, there is a valid Will in existence. However, if Testator gives a legacy to A, B, C and to an attesting witness, so far as Will is concerned, it is treated as a Valid Will. So far as the legacies to A, B and C are concern, those are valid legacies. But so far as legacy or the Bequest to an attesting Witness is concerned, it is a Void Bequest; as against the entire will being void. It means, the Bequest (to an attesting witness in the given case) is void ab initio (from the time of making the Bequest). Sections 67, 89, 112, 118, 126 and 127 deal with Void Bequests.

(iii) Doctrine of LAPSE

Testator makes a Will and gives legacy to A, B, C and D who is not born at the time of making the Will. The will is a valid one. Legacies too are operative at the time of making it. However, on the sad demise of testator, if D is not born, who will take his legacy? Therefore, the legacy to D fails or it lapses. Thus, will is not void. The Bequests too are not void. However, in the given case, one Bequest fails/lapses because there is no taker of the Bequest.

Thus, the Doctrine of Lapse states that legacy lapses on death of Legatee (or when he is not born) before the death of Testator, either before or after making of the Will. However, legacies will not lapse in cases covered under Sections 106, 108 111. Sections 105 to 111 deal with lapsing/not lapsing of legacies. It will not be out of place to note here that as far as possible, legacies must be given effect to. It is all the more so when the bequest contains a general charitable intention. In such cases, bequests do not lapse.

(iv) Doctrine of CY PRESS

It is the rule of law that the court cannot make a will for the Testator must construe the Will he had made. If the Testator has given his property in charity, the primary rule is to ascertain whether the object aimed at by the Testator could be carried out without making a new will for him. If the court can ascertain that there was a general charitable intention, the fact that the particular object for which the charity was intended did not exist or that the fund intended for that charity could not exhaust the whole income will not be any reason for holding that the bequest failed, either wholly or in part.

The Testator’s lapses, his ignorance and his failures to understand the situations should not fetter the courts so long as the purposes specified by him are not violated. Thus, if a Testator has manifested the general intention to give to charity, whether in general terms or to charities of a defined character the failure of a portion or mode in which charitable intention is to be effectuated, shall not imperil the charitable gift. If the substantial intention is charitable, the court will substitute some other mode of carrying it into effect. But if on the proper construction of the Will, the mode of application is such as essential part of the gift that you cannot distinguish any general purpose of charity but are obliged to say that the prescribed mode of doing the charitable act is the only one, the Testator intended or at all, contemplated then the court cannot, if that mode fails, apply the money to some other charity.

Section 105 applies to Hindus, Sikhs, Jains and Buddhists. It says that legacy will lapse if legatee does not survive the Testator or if legatee dies before Testator, and neither the legal representatives of legatee nor the Executor can claim it. Although Section 105 deals with the lapsing of legacy on account of the legatee, there are other cases also where legacy lapses. The legacy to a charitable institution which did not exist at the time of death of the Testator, also lapses. The another case in which legacy lapses or rather does not take effect is the contingent legacy, say for example, if a gift is given to a unmarried daughter and if the daughter marries before legacy takes effect, legacy will not take effect or it would lapse. A makes bequest to B. B dies before A. B’s legacy fails.

Section 106 applies to Hindus, Sikhs, Jains and Buddhists. It states as to when legacy would not lapse. Section 106 relates “Joint Legacies”. In Section 105 also, it is contemplated that from the will, if intention is apparent to the effect that some other person should be substituted, the legacy would not lapse. Similarly, if legacy is given to two persons jointly and if one of them predeceased the Testator, the other legatee will take the legacy. But if the legacy is given to two persons as Tenancy in Common, the half of the legacy would lapse.

(v) Tenancy in Common and Joint Tenancy

When two or more heirs take the whole estate without any defined individual shares with the right of survivorship on demise of the other, this is known as Joint Tenancy. When the estate devolves on the heirs on demise of the co-owner, his share goes to his heir and this is known as – Tenancy in Common. The question whether Joint Tenancy was created or a Tenancy in Common, was created is a question of fact and should be decided on the facts of each case. However, in cases of doubt, the courts would lean against the joint tenancy and would favour the Tenancy in Common.

The word “two” in Section 106 is merely an illustrative and it means two or more. A makes gift to B and C jointly. C will take absolutely.

Section 107 applies to Hindus, Sikhs, Jains and Buddhists. This section and the previous section should be read together. This section lays down that (generally) where legatees are given legacy in a distinct share, they get it as tenants in common and as such by the death of one of the legatees, before the testator, his share (of the deceased legatee) lapses and even if the legatee has left any heir, the heir does not get anything because the share of the legatee had lapsed on account of his death. The share of the deceased legatee reverts back to the Testator. Thus, if B and C are given the SPECIFIC SHARE (Please note in the earlier case, it was not a case of specific share) the share of the deceased will revert back to Testator.

Section 108 applies to Hindus, Sikhs, Jains and Buddhists. Where a Testator names a residuary legatee, he will be entitled to in general not only to what remains after payment of debts and legacies but also to whatever may fall into the residue, after making of the will.

Section 109 applies to Hindus, Sikhs, Jains and Buddhists.

This section is based on English Wills Act which lays down that where any person (being a child of Testator), to whom any property is gifted and if that is not determinable at or before the death of such person, shall die in the life time of the Testator leaving

issue, at the time of death of the Testator, such bequest shall not lapse. But shall take effect, as if the death of such person had happened immediately after the death of the Testator unless contrary intention appears in the Will thus, if a bequest is made to son and daughter and if son predeceases father leaving behind his children then his legacy will go to his children.

Section 110 applies to Hindus, Sikhs, Jains and Buddhists. It lies down that if legacy is made to A for benefit to B and A dies in life time of the Testator, legacy will not lapse.

Section 111 lays down that a will comes into operation from the time of Testator’s death. So when a will is made to a class of persons (i.e. sons, children, etc.) then legacy to this class of persons is crystallised at the Testator’s death. Those born into that class after the death or those who died before the death of Testator are excluded. In other words, bequest goes to such person as are alive at the Testator’s death.

EXCEPTION: If bequest is deferred until the time later than the death of the Testator (because there is a prior bequest or otherwise), that bequest will go to such of them who are then alive (or to their representative if any one of them has died)

(i) Bequest of Rs. 100/- by A to children of B. B had three children, C, D and E. B had died before the date of will. E died after the date of will but after the death of A (Testator). C and D survive. Even if E has any heir or representative, E with heirs and representatives are excluded. C and D will take the legacy exclusively.

(ii) Lease of House to A for life then to children of B. B had two children (C and D). C died during the life time of A who had life interest leaving E as his Executor. B had survived the Testator. D and E will take the legacy. (Note: In the earlier illustration, a gift was made to children whereas in the next illustration, before giving to children, a life interest is created in favour of A and falls in the exception clause).

(iii) A sum of money is bequeathed to 4 (for life) and after him to children of B. After the Testator’s death, B had two children, C and D. Thereafter, more children, E and F were born in lifetime of A. C had made a Will. E had made no will. A died leaving behind him D and F. Legacy will be divided equally between D and F.

(iv) Bequest of 1/3 land to B for life then to his sisters. At the Testator’s Death, B had two sisters – C and D and then E were born. C, D and E will share equally.

(v) Rs. 1000/- to B for life, then to children of C. C had no children until the death of B. Bequest is void.

(vi) Rs. 1000/- to children born or to be born of B, at the death of C. B had two children D and E. After the death of C, one more child was born. This will be excluded.