Void Bequests: When Wills Fail to Find Their Beneficiaries

Void Bequests: When Wills Fail to Find Their Beneficiaries

 

The Law of Non-Existent Heirs

 

Why Timing Matters in Testamentary Gifts

 

By Vishwas Kumar

New Delhi: April 18, 2026:

The law of succession often grapples with the delicate balance between a testator’s intent and the realities of existence at the time of death. Sections 112 and 113 of the Indian Succession Act deal precisely with this tension, laying down rules for void bequests—situations where a gift in a will cannot take effect because the intended beneficiary does not exist at the crucial moment of the testator’s death.

Section 112: Bequest to a Person by Description Who Does Not Exist

This provision states that if a bequest is made to a person described in a particular way (for example, “eldest son of B”), and no such person exists at the testator’s death, the bequest is void. The rationale is straightforward: a will speaks from the death of the testator, and unless the described person exists at that time, the gift cannot vest.

However, the law carves out an exception. If the possession of the property is deferred—say, because another person has a life interest—then a person who comes into existence before the deferred time may still take the property. This ensures that the testator’s intent is not defeated merely because the beneficiary was not alive at the exact moment of death, provided the gift was meant to take effect later.

The illustrations clarify this principle:

• If B has no son at the testator’s death, a direct bequest to “B’s eldest son” fails.
• But if the property is first given to B for life, and C’s son is born during B’s lifetime, that son can inherit after B’s death.
• Importantly, if such a son dies before the deferred time, his representatives can claim the legacy, preserving continuity of inheritance.
• Conversely, if no son is born even by the deferred time, the bequest remains void.

Thus, Section 112 balances certainty with fairness, recognizing future births when the gift is postponed.

Section 113: Bequest to Non-Existent Person Subject to Prior Bequest

This section addresses a subtler issue: when a bequest is made to someone not in existence at the testator’s death, but subject to a prior bequest. The rule is that such a later bequest is void unless it comprises the whole remaining interest of the testator in the property.

The logic is that partial interests cannot be carved out for unborn persons. Only if the entire residue of the testator’s interest is left to them does the law allow validity. This prevents fragmentation of property rights among hypothetical heirs who may never exist.

Illustrations demonstrate the distinction:

• A bequest to A for life, then to his eldest son for life, and then to that son’s eldest son is void if A has no son at the testator’s death. The unborn son is given only a life interest, not the whole remaining interest.
• But if a fund is given to A for life and then to his daughters, even those born after the testator’s death can inherit, since they take the whole remaining interest.
• Where settlements reduce the unborn beneficiary’s share to a mere life interest, the bequest is void.

This provision underscores the principle that the law disfavours contingent, partial interests for persons not yet born, but permits full succession rights if the entire remainder is given.

 

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Broader Implications

Together, Sections 112 and 113 highlight the law’s cautious approach to unborn beneficiaries. The rules ensure that property rights are not left in limbo, dependent on uncertain future events. They also protect existing heirs from indefinite postponement of succession. At the same time, the exceptions reflect sensitivity to family realities, allowing children born after the testator’s death to benefit when the gift was clearly intended for them.

In practice, these provisions remind drafters of wills to be precise. Ambiguous descriptions or reliance on unborn heirs can render bequests void, frustrating the testator’s wishes. Legal advice is crucial to ensure that testamentary gifts are structured in ways that the law will uphold.

 

 

 

OF VOID BEQUESTS

 

112.     Bequest to person by particular description, who is not in existence at testator’s death. —  Where a bequest is made to a person by a particular description and there is no person in existence at the testator's death who answers the description, the bequest is void.

Exception.—If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he is dead, to his representatives.

 

Illustrations

(i)         A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B has no son. The bequest is void.

(ii)        A bequeaths 1,000 rupees to B for life and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon B’s death the legacy goes to. C's son.

(iii)       A bequeaths 1,000 rupees to B for life and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son, named D, is born to C. D dies, then B dies. The legacy goes to the representative of D.

(iv)      A bequeaths his estate of Green Acre to be for life and at his decease, to the eldest son of C. Up to the death of B, C has had no son. The bequest to C’s eldest son is void.

(v)       A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At the death of the testator C has no son, but a son is afterwards born to him during the life of B and is alive at B’s death. C’s son is entitled to the 1,000 rupees.

 

113.     Bequest to person not in existence at testator's death subject to prior bequest. — Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

Illustrations

(i)         Property is bequeathed to A for his life and after his death to his eldest son for life and after the death of the latter to his eldest son. At the time of the testator’s death, A has no son. Here the bequest to A’s eldest son is a bequest to a person not in existence at the testator’s death. It is not a bequest of the whole interest that remains to the testator. The bequest to A’s eldest son for his life is void.

(ii)        A fund is bequeathed to A for his life and after his death to his daughters. A survives the testator. A has daughters some of whom were not in existence at the testator’s death. The bequest to A’s daughters comprises the whole interest that remains to the testator in the thing bequeathed. The bequest to A’s daughters is valid.

(iii)       A fund is bequeathed to A for his life and after his death to his daughters, with a direction that, if any of them marries under the age of eighteen, her portion shall be settled so that it may belong, to herself for life and may be divisible among her children after her death. A has no daughters living at the time of the testator’s death, but has daughters born afterwards who survive him. Here the direction for a settlement has the effect in the case of each daughter who marries under eighteen of substituting for the absolute bequest to her a bequest to her merely for her life; that is to say, a bequest to a person not in existence at the time of the testator’s death of something which is less than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void.