The fine distinction underlying in expressions like “living person”, “person not in existence” and “unborn person” must be clearly borne in mind. Even before that, it must be clearly borne in mind that ‘living’, ‘not in existence’ and ‘unborn person’ has reference to the time of death of the Testator.
Thus, when it is said that Bequest is made to a living person, it means, the bequest is made to a person who is living at the time of death of the Testator. If it were said that Bequest is made to a person ‘not in existence’, it would mean that the Bequest is made to a person who was not living at the time of death of the Testator but who is born after the death of the Testator. Similarly, the Bequest to ‘unborn person’ would also mean that the Bequest is made to a person who was not born at the time of death of the Testator but who is born alive after the death of the Testator. There cannot be any difficulty if ‘Bequest’ is made to a living person’ or to a person who is living at the time of death of the Testator.
Difficulty arises only when Bequest is made to an ‘unborn person’ or to a person not in existence’. Section 112, however, makes it clear that Bequest to a person not in existence is void. It lies down that if a bequest is made to a person by a particular description and no one is in existence matching that description, the Bequest is void. It is the general rule and there are always exceptions to the general rule. As an exception to the general rule, it is laid down that if bequest is made to the (unborn) legatee who is kindred of a specified individual and the operation of ‘Will’ is deferred, the bequest to such ‘unborn person’ is not rendered void. In other words, even if Bequest is made to the unborn person (person not in existence), it is not void if it has to take effect after the Life interest given to a living person.
Thus, bequest to unborn person can take effect only if there is an intervening “Life Interest”. For example, if a life interest is given to ‘A’ and thereafter, the Bequest is given to his eldest child, who is not living at the time of death of the Testator, the Bequest to A’s eldest child is valid although he/she was not living at the time of the death of the Testator. However, the exception is subject to the restriction that the unborn person to whom Bequest is made must come in existence (although after the death of the Testator but) before the death of the Legatee who is given the intervening Life interest.
(i) Bequest is made to the eldest son of A. A had no son at the time of death of Testator. Bequest is void.
(ii) Bequest to the eldest son of A to be paid after the death of B. At the time of death of Testator, A did not have any son but later on a son is born. Son will take the legacy.
(iii) Bequest of life interest to A. Thereafter to B’s Son (who is not in existence at the time of death of Testator). B gets a son before the death of A but then the Son also dies before the death of A. Bequest to the Son is valid and after death of A, Son’s representatives will receive the bequest.
While it is true that Bequest to the unborn person after ‘life interest’ can be given, however, Section 113 curtails the application of Section 112 by stating that after a life interest, life interest to unborn person cannot be made. Section 113 lays down that where a bequest is made to a person not in existence, subject to a prior bequest, the later bequest shall be void unless it comprises the whole of the remaining interest of the Testator.
In other words, bequest to the unborn person after the life interest must be for the whole of remaining interest of the Testator. Or, so to say, bequest of a limited interest in favour of a living person cannot be followed by another bequest of limited interest. An attempt to give life interest (to a person not in existence) after life interest (to living person) will make the later bequest void. It will be useful to notice that Section 113 has used the express ‘remaining interest’ and not the ‘remaining property’. The ‘remaining interest’ refers to the Testator’s a right in that part of his property, which is the subject of the ‘Will’ in question.
(i) Bequest to, 4 for life. Then, life interest to A’s eldest Son. Bequest to As eldest son is void because it is only a life interest and not the whole of the remaining interest of the Testator.
(ii) A fund to B for life and then to his daughter. Bequest to daughter is valid because it is for the whole of the remaining interest of the Testator.
(iii) A Fund is bequeathed to A for life and then to his daughters. But if any of the daughters marries under the age of 18, then her share shall be settled so that it may belong to herself for life and may be divisible among her children after her death. The direction to settle the fund is void.
(iv) If sum of money is given to B for life, then they said sum is settled upon his daughters. Direction to settle the fund is void.