When Wills Speak in Shadows in Courtroom While Interpretated Under Indian Succession Laws

When Wills Speak in Shadows in Courtroom While Interpretated Under Indian Succession Laws

 

How Uncertainty, Alternatives, and Residuary Clauses Shape Legacies

 

Why Courts Guard Against Lapses in Bequests

 

By Vishwas Kumar

New Delhi: April 17, 2026:

The Indian Succession Act devotes a significant portion of its framework to the construction of wills, ensuring that the testator’s intent is preserved even when language is imperfect. Sections 89 to 111 provide detailed rules on how courts interpret vague, alternative, or overlapping bequests, and how they handle lapses when beneficiaries predecease the testator. These provisions highlight the delicate balance between honouring intention and maintaining legal certainty.

 

A key authority often cited in matters of testamentary validity is Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee (Deceased) & Ors., where the Supreme Court elaborated on the burden of proof in will disputes and the importance of removing suspicious circumstances surrounding execution. This landmark ruling continues to guide courts in assessing the genuineness and validity of testamentary documents.

 

Key Legal Rules and Analytical Insights

1. Uncertainty in Bequests (Section 89)

• A will or bequest is void if it does not express a definite intention.
• Example: “I bequeath goods to A” without specifying which goods, or “I leave to A all the goods mentioned in the Schedule” when no schedule exists.
• Courts emphasize that if the property or purpose can be identified, the bequest survives.

Analytical Note: This prevents vague or incomplete dispositions from creating disputes, while protecting clear intentions from being defeated by minor drafting flaws.

 

2. Property Descriptions and Powers (Sections 90–92)

• Property descriptions refer to assets as they exist at the testator’s death.
• General bequests may execute powers of appointment unless contrary intention appears.
• If a power of appointment is not exercised, property devolves equally among the intended class.

Illustration: A fund left to a widow to divide among children devolves equally if she makes no appointment.

 

3. Bequests to Heirs and Representatives (Sections 93–94)

• Bequests to “heirs,” “relations,” or “legal representatives” are treated as intestate succession of the designated person.
• Example: A legacy to “the heirs of C” devolves as if C had died intestate.

 

4. Extent of Interest (Section 95)

• Unless restricted, a legatee receives the full interest of the testator in the property.
• Courts have clarified that only when the will expressly limits interest (e.g., life interest), the legatee cannot claim more.

 

5. Alternative Bequests (Section 96)

• If property is left to A or B, A takes if alive at the testator’s death; otherwise, B.
• This ensures clarity in succession when alternatives are provided.

 

6. Classes and Descriptions (Sections 97–100)

• Adding descriptive words (e.g., “A and his children”) does not create independent gifts unless expressly stated.
• General descriptions apply only to those who fit them in ordinary sense.
• Section 99 defines terms like “children,” “grandchildren,” “cousins,” ensuring uniform interpretation.
• Section 100 clarifies that relationship terms denote legitimate relatives unless none exist, in which case reputed legitimate relatives may inherit.

 

7. Multiple Bequests to Same Person (Section 101)

• Rules distinguish between repetition (same legacy given twice) and distinct gifts.
• If the same specific item is bequeathed twice, the legatee gets it once; if amounts differ, both are valid.

 

8. Residuary Legatees (Sections 102–103)

• A residuary legatee takes all property not otherwise disposed of.
• Even void or lapsed legacies fall into residue.

 

9. Vesting and Lapse (Sections 104–110)

• Legacies vest at the testator’s death unless otherwise specified.
• If a legatee dies before the testator, the legacy lapses unless substitution is provided.
• Joint legacies survive to the other legatee.
• Distinct shares lapse into residue.
• Exception: Bequests to children or lineal descendants do not lapse if their descendants survive.

 

10. Class Bequests and Survivorship (Section 111)

• Bequests to a class go only to those alive at the testator’s death.
• Exception: If possession is deferred, representatives of deceased members may inherit.

 

 

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Will or bequest void for uncertainty. —A will or bequest not expressive of any definite intention is void for uncertainty.

Illustration

If a testator says “I bequeath goods to A,” or “I bequeath to A,” or “I leave to A all the goods mentioned in the Schedule” and no Schedule is found, or “I bequeath ‘money,’‘wheat,’ ‘oil,’ ” or the like, without saying how much, this is void.

COMMENTS

Section 89 states that a Will or bequest not expressive of any definite intention is void for uncertainty. Section 89 comes in Chapter VI of the Succession Act, which deals with 'Construction of Wills', consisting of sections 74 to 111. Thus, it is to be seen whether while construing this Will one can find out the intention of the testator. If the Will contains provisions expressive of any definite intention, then that Will will not become void because of uncertainty. Section 89 applies only to those cases where a Will is so indefinite that it is not possible to give any definite intention to it at all. If the testator indicates what he intends to bequeath and that indication is sufficient to identify the property bequeathed, there cannot be any difficulty because the testator himself has made the selection of the properties. So also if the testator indicates the purposes for which the properties are bequeathed, then that bequest cannot also fail for vagueness; Papoo v. Kuruvilla, 1994 (2) KLT 278.

 

90.       Words describing subject refer to property answering description at testator’s death.— The description contained in a will of property, the subject of gift, shall, unless a contrary intention appears by the will, be deemed to refer to and comprise the property answering that description at the death of the testator.

 

91.       Power of appointment executed by general bequest.—Unless a contrary intention appears by the will, a bequest of the estate of the testator shall be construed to include any property which he may have -power to appoint by will to any object he may think proper and shall operate as an execution of such power; and a bequest of property described in a general manner shall be construed to include any property to which such description may extend, which he may have power to appoint by will to any object he may think proper and shall operate as an execution of such power.

 

92.       Implied gift to objects of power in default of appointment.—Where property is bequeathed to or for the benefit of certain objects as a specified person may appoint or for the benefit of certain objects in such proportions as a specified person may appoint and the will does not provide for the event of no appointment being made; if the power given by the will is not exercised, the property belongs to all the objects of the power in equal shares.

Illustration

A, by his will bequeaths a fund to his wife, for her life and directs that at her death it shall be divided among his children in such proportions as she shall appoint. The widow dies without having made any appointment. The fund will be divided equally among the children.

 

93.       Bequest to “heirs,” etc., of particular person without qualifying terms.—Where a bequest is made to the “heirs” or “right heirs” or “relations” or “nearest relations” or “family” or “kindred” or “nearest of kin” or “next-of-kin” of a particular person without any qualifying terms and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property.

Illustrations

(i)         A leaves his property “to my own nearest relations”. The property goes to those who would be entitled to it if A had died intestate, leaving assets for the payment of his debts independently of such property.

(ii)        A bequeaths 10,000 rupees “to B for his life and, after the death of B, to my own right heirs”. The legacy after B’s death belongs to those who would be entitled to it if it had formed part of A’s unbequeathed property.

(iii)       A leaves his property to B; but if B dies before him, to B’s next-of kin; B dies before A; the property devolves as if it had belonged to B and he had died intestate, leaving assets for the payment of his debts independently of such property.

(iv)      A leaves 10,000 rupees “to B for his life and after his decease to the heirs of C”. The legacy goes as if it had belonged to C and he had died intestate, leaving assets for the payment of his debt independently of the legacy.

 

94.       Bequest to “representatives”, etc., of particular person. — Where a bequest is made to the “representatives” or “legal representatives” or “personal representatives” or “executors or administrators” of a particular person and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate in respect of it.

Illustration

A bequest is made to the “legal representatives” of A. A has died intestate and insolvent. B is his administrator.

B is entitled to receive the legacy and Will apply it in the first place to the discharge of such part of A’s debt as may remain unpaid: if there be any surplus B Will pay it to those persons who at A’s death would have been entitled to receive any property of A’s which might remain after payment of his debts, or to the representatives of such persons.

 

95.       Bequest without words of limitation. — Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him.

COMMENTS

When a testator bequeaths a property to another without mentioning as to what interest he intends to confer on the legatee, the latter will get the absolute interests of the former. Section 95 of the Indian Succession Act envisages that where a testator bequeathed property to a person, such person (legatees) would be entitled to the entire interests of the testator. But when the testator has manifested in the Will to give the legatee only a limited interest in the property, he cannot claim any right more than what the testator had intended. However, if the legatee was given only a restricted interest, section 95 makes the position clear that he will not get the whole interests of the testator; Narayanan Anandan v. Rakesh, 1994 (1) KLT 475.

 

96.       Bequest in alternative.—Where a property is bequeathed to a person with a bequest in the alternative to another person or to a class of persons, then, if a contrary intention does not appear by the Will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy.

Illustrations

(i)         A bequest is made to A or to B. A survives the testator. B takes nothing.

(ii)        A bequest is made to A or to B. A dies after the date of the Will and before the testator. The legacy goes to B.

(iii)       A bequest is made to A or to B. A is dead at the date of the Will. The legacy goes to B.

(iv)      Property is bequeathed to A or his heirs. A survives the testator. A takes the property absolutely.

(v)       Properly is bequeathed to A or his nearest of kin. A dies in the lifetime of the testator. Upon the death of the testator, the bequest to A’s nearest of kin takes effect.

(vi)      Properly is bequeathed to A for life and after this death to B or his heirs. A and B survive the testator. B dies in A’s lifetime. Upon A’s death the bequest to the heirs of B takes effect.

(vii)     Property is bequeathed to A for life and after his death to B or his heirs. B dies in the testator's lifetime. A survives the testator. Upon A's death the bequest to the heirs of B takes effect.

 

97.       Effect of words describing a class added to bequest to person. — Where property is bequeathed to a person and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will.

Illustrations

(i)         A bequest is made—

to A and his children,

to A and his children by his present wife, to A and his heirs,

to A and the heirs of his body,

to A and the heirs male of his body, to A and the heirs female of his body, to A and his issue,

to A and his family,

to A and his descendants,

to A and his representatives,

to A and his personal representatives, to A, his executors and administrators.

In each of these cases, A takes the whole interest which the testator had in the property.

(ii)        A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy.

(iii)       A bequest is made to A for life and after his death to his issue. At the death of A the property belongs in equal shares to all persons who then answer the description of issue of A.

 

98.       Bequest to class of persons under general description only. — Where a bequest is made to a class of persons under a general description only, no one to whom the words of the description are not in their ordinary sense applicable shall take the legacy.

 

99.       Construction of terms. — In a will—

(a)        the word “children” applies only to lineal descendants in the first degree of the person whose “children” are spoken of;

(b)        the word “grandchildren” applies only to lineal descendants in the second degree of the person whose “grand children” are spoken of;

(c)        the words “nephews” and “nieces” apply only to children of brothers or sisters;

(d)       the words “cousins,” or “first cousins,” or “cousins-german,” apply only to children of brothers or of sisters of the father or mother of the person whose “cousins,” or “first cousins,” or “cousins-german,” are spoken of;

(e)        the words “first cousins once removed” apply only to children of cousins-german, or to cousins-german of a parent of the person whose “first cousins once removed” are spoken of;

(f)        the words “second cousins” apply only to grandchildren of brothers or of sisters of the grandfather or grandmother of the person whose “second cousins” are spoken of;

(g)        the words “issue” and “descendants” apply to all lineal descendants whatever of the person whose “issue” or “descendants” are spoken of;

(h)       words expressive of collateral relationship apply alike to relatives of full and of half blood; and

(i)         all words expressive of relationship apply to a child in the womb who is afterwards born alive.

 

100.     Words expressing relationship denote only legitimate relatives or failing such relatives reputed legitimate.—In the absence of any intimation to the contrary in a will, the word “child,” the word “son”, the word “daughter” or any word which expresses relationship, is to be understood as denoting only a legitimate relative, or, where there is no such legitimate relative, a person who has acquired, at the date of the Will, the reputation of being such relative.

Illustrations

(i)         A having three children, B, C and A of whom B and Care legitimate and D is illegitimate leaves his property to be equally divided among “my children”. The property belongs to B and C in equal shares, to the exclusion of D.

(ii)        A, having a niece of illegitimate birth, who has acquired the reputation of being his niece and having no legitimate niece, bequeaths a sum of money to his niece. The illegitimate niece is entitled to the legacy.

(iii)       A, having in his Will enumerated his children and named as one of them B, who is illegitimate, leaves a legacy to “my said children”. B Will take a share in the legacy along with the legitimate children.

(iv)      A leaves a legacy to “the children of B”. B is dead and has left none but illegitimate children. All those who had at the date of the Will acquired the reputation of being the children of B are objects of the gift.

(v)       A bequeaths a legacy to “the children of B”. B never had any legitimate child. C and D had, at the date of the Will, acquired the reputation of being children of B. After the date of the Will and before the death of the testator, E and F were born and acquired the reputation of being children of B. Only C and D are objects of the bequest.

(vi)      A makes a bequest in favour of his child by a certain woman, not his wife. B had acquired at the date of the Will the reputation of being the child of A by the woman designated. B takes the legacy.

(vii)     A makes a bequest in favour of his child to be born of a woman who never becomes his wife. The bequest is void.

(viii)    A makes a bequest in favour of the child of which a certain woman, not married to him, is pregnant. The bequest is void.

 

101.     Rules of construction where will purports to make two bequests to same person.—Where a will purports to make two bequests to the same person and a question arises whether the testator intended to make the second bequest instead of or in addition to the first; if there is nothing in the will to show what he intended, the following rules shall have effect in determining the construction to be put upon the will:—

(a)        If the same specific thing is bequeathed twice to the same legatee in the same will or in the will and again in the codicil, he is entitled to receive that specific thing only.

(b)        Where one and the same will or one and the same codicil purports to make, in two places, a bequest to the same person of the same quantity or amount of anything, he shall be entitled to one such legacy only.

(c)        Where two legacies of unequal amount are given to the same person in the same will or in the same codicil, the legatee is entitled to both.

(d)       Where two legacies, whether equal or unequal in amount, are given to the same legatee, one by a will and the other by a codicil, or each by a different codicil, the legatee is entitled to both legacies.

Explanation: In clauses (a) to (d) of this section, the word “will” does not include a codicil.

Illustrations

(i)         A, having ten shares and no more, in the Imperial Bank of India, made his Will, which contains near its commencement the words “I bequeath my ten shares in the Imperial Bank of India to B”. After other bequests, the Will concludes with the words "and I bequeath my ten shares in the Imperial Bank of India to B". B is entitled simply to receive A’s ten shares in the Imperial Bank of India.

(ii)        A, having one diamond ring, which was given to him by B, bequeaths to C the diamond ring which was given by B. A afterwards made a codicil to his Will and thereby, after giving other legacies, he bequeathed to C the diamond ring which was given to him by B, C can claim nothing except the diamond ring which was given to A by B.

(iii)       A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will repeats the bequest in the same words. B is entitled to one legacy of 5,000 rupees only.

(iv)      A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will bequeaths to B the sum of 6,000 rupees. B is entitled to receive 11,000 rupees.

(v)       A, by his will, bequeaths to B 5,000 rupees and by a codicil to the will he bequeaths to him 5,000 rupees. B is entitled to receive 10,000 rupees.

(vi)      A, by one codicil to his will, bequeaths to B 5,000 rupees and by another codicil bequeaths to him, 6,000 rupees. B is entitled to receive 11,000 rupees.

(vii)     A, by his will, bequeaths “500 rupees to B because she was my nurse” and is another part of the will bequeaths 500 rupees to B “because she went to England with my children”. B is entitled to receive 1,000 rupees.

(viii)    A, by his will, bequeaths to B the sum of 5,000 rupees and also, in another part of the will, an annuity of 400rupees. B is entitled to both legacies.

(ix)       A, by his will, bequeaths to B the sum of 5,000 rupees and also bequeaths to him the sum of 5,000 rupees if he shall attain the age of 18. B is entitled absolutely to one sum of 5,000 rupees and takes a contingent interest in another sum of 5,000 rupees.

 

COMMENTS

If upon the death of the testator, the original Will is not available, it cannot be inferred that the Will was revoked; Rangaroo v. Gopal, AIR 1959 Bom 287.

 

102.     Constitution of residuary legatee. — A residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property.

Illustrations

(i)         A makes her will, consisting of several testamentary papers, in one of which are contained the following words:— “I think there will be something left, after all funeral expenses, etc., to give to B, now at school, towards equipping him to any profession he may hereafter be appointed to.” B is constituted residuary legatee.

(ii)        A makes his will, with the following passage at the end of it: — “I believe there will be found sufficient in my banker’s hands to defray and discharge my debts, which I hereby, desire B to do and keep the residue for her own use and pleasure.” B is constituted the residuary legatee.

(iii)       A bequeaths all his property to B, except certain stock and funds, which he bequeaths to C. B is the residuary legatee.

 

103.     Property to which residuary legatee entitled. — Under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effect.

Illustration

A         by his will bequeaths certain legacies, of which one is void under section 118 and another lapses by the death of the legatee. He bequeaths the residue of his property to B. After the date of his will A purchases a zamindari, which belongs to him at the time of his death. B is entitled to the two legacies and the zamindari as part of the residue.

 

104.     Time of vesting legacy in general terms. — 1f a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of the testator and, if he dies without having received it, it shall pass to his representatives.

 

105.     In what case legacy lapses. —

(1)        If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator’s property, unless it appears by the Will that the testator intended that it should go to some other person.

(2)        In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.

Illustrations

(i)         The testator bequeaths to B “500 rupees which B owes me”. B dies before the testator; the legacy lapses.

(ii)        A bequest is made to A and his children. A dies before the testator, or happens to be dead when the will is made. The legacy to A and his children lapses.

(iii)       A legacy is given to A and, in case of his dying before the testator, to B. A dies before the testator. The legacy goes to B.

(iv)      A sum of money is bequeathed to A for life and after his death to B. A dies in the lifetime of the testator; B survives the testator. The bequest to B takes effect.

(v)       A sum of money is bequeathed to A on his completing his eighteenth year and in case he should die before he completes his eighteenth year, to B. A completes his eighteenth year and dies in the lifetime of the testator. The legacy to A lapses and the bequest to ii does not take effect.

(vi)      The testator and the legatee perished in the same ship-wreck. There is no evidence to show which died first. The legacy lapses.

 

106.     Legacy does not lapse if one of two joint legatees die before testator.—If a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole.

Illustration

The legacy is simply to A and B. A dies before the testator. B takes the legacy.

 

107.     Effect of words showing testator’s intention to give distinct shares. — If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property.

Illustration

A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies before the testator, B and C Will only take so much as they would have had if A had survived the testator.

 

108.     When lapsed share goes as undisposed of. — Where a share which lapses is a part of the general residue bequeathed by the Will, that share shall go as undisposed of.

Illustration

The testator bequeaths me residue of his estate to A, B and C, to be equally divided between them. A dies before the testator. His one-third of the residue goes as undisposed of.

109.     When bequest to testator’s child or lineal descendant does not lapse on his death in testator’s lifetime. — Where a bequest has been made to any child or other lineal descendant of the testator and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will.

Illustration

A makes his Will, by which he bequeaths a sum of money to his son, B, for his own absolute use and benefit. B dies before A, leaving a son, C, who survives A and having made his Will whereby he bequeaths all his property to his widow. D. The money goes to D.

 

110.     Bequest to A for benefit of B does not lapse by A’s death. — Where a bequest is made to one person, for the benefit of another, the legacy does not lapse by the death, in the testator’s lifetime, of the person to whom the bequest is made.

 

111.     Survivorship in case of bequest to described class. — Where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator’s death.

Exception.—If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise, the property shall at that time go to such of them as are then alive and to the representatives of any of them who have died since the death of the testator.

Illustrations

(i)         A bequeaths 1,000 rupees to “the children of B” without saying when it is to be distributed among them. B had died previous to the date of the will, leaving three children, C, D and E. E died after the date of the Will but before the death of A. C and D survive A. The legacy will belong to C and D, to the exclusion of the representatives of E.

(ii)        A lease for years of a house, was bequeathed to A for his life and after his decease to the children of B. At the death of the testator, B had two children living, C and D and he never had any other child. Afterwards, during the lifetime of A, C died, leaving E, his executor. D has survived A, D and E are jointly entitled to so much of the leasehold term as remains unexpired.

(iii)       A sum of money was bequeathed to A for her life and after her decease to the children of 13. At the death of the testator, B had two children living, C and D and, after that event, two children, E and F, were born to B. C and E died in the lifetime of A, C having made a will, E having made no will. A has died, leaving D and F surviving