This edition (#15) of the M2K Advisors Succession Planning Series explains the concept of bequest under a will—how it works, when it is valid, and when it becomes void. The document breaks it down into categories like cases where bequests are void, onerous bequests, contingent bequests, and conditional bequests. Using simple illustrations and statutory reasoning, it guides the reader through nuanced legal principles under the Indian Succession Act. If you’re writing, reading, or executing a will, this blog is your guide to understanding how different types of bequests are treated legally—and what pitfalls to avoid.
Cases where bequest is regarded as void
A bequest is the transfer of assets through a will. However, not every bequest made in a will is valid under law. The following situations result in the bequest being treated as void:
1. Bequest to a person not in existence at the testator’s death
A bequest made to someone who does not exist at the time of the testator’s death is void.
Exception:
If the possession of the bequeathed property is deferred due to a prior bequest, and the legatee is born in the meantime, the bequest can be valid.
Illustration:
A bequeaths ₹1,000 to B for life, and after B’s death, to the eldest son of C.
At A’s death, C has no son. But during B’s lifetime, C has a son.
→ Upon B’s death, the legacy goes to C’s son.
2. Bequest to someone not in existence + subject to a prior bequest
If a bequest is made to a person not in existence, subject to a prior bequest, it is void unless it covers the entire remaining interest in the property.
Illustration:
A fund is bequeathed to A for life and then to A’s daughters.
A survives the testator. Some daughters were not yet born at A’s death.
→ Since the bequest covers the full remaining interest, it is valid.
3. Bequest for charitable/religious use with close relatives alive
A bequest made for religious or charitable purposes is void if the testator has a nephew, niece, or nearer relative alive.
Exception:
If the will was executed within 12 months before death and was deposited in safe custody within 6 months of execution, then the charitable bequest is valid.
4. Bequest upon an impossible condition
If a condition attached to a bequest is physically impossible, the bequest is void.
Illustration:
A estate is bequeathed to B on the condition that he walks 100 miles in one hour.
→ Void.
5. Bequest upon illegal or immoral condition
If the condition violates law or morality, the bequest fails.
Illustration:
₹500 is bequeathed to B, on the condition that he murders C.
→ The bequest is void.
Onerous Bequest (involving obligation)
An onerous bequest is one where the gift comes with an attached burden or obligation.
1. Two similar assets—one profitable, one burdensome
If a person is given all shares in a company, but some are valuable and some come with liabilities, the legatee must accept both or reject both.
Illustration:
A bequeaths all shares in joint stock companies to B.
X Ltd. shares are profitable, Y Ltd. is struggling.
→ B can’t accept X Ltd. and reject Y Ltd.
→ He must accept or reject the entire bequest.
2. Separate and independent bequests
If the will gives two independent items—like property and money—the legatee can accept one and refuse the other.
Illustration:
A bequeaths to B a leased house (with high rent) and a sum of money.
→ B can reject the lease and still accept the money.
Contingent Bequest
A contingent bequest depends on the occurrence (or non-occurrence) of a future, uncertain event.
1. Subject to an uncertain event with no timeline
If no time is mentioned for when the event must happen, the bequest is valid only if the event occurs before distribution or payment.
Illustration:
A and B are to divide property equally, or to the survivor.
→ If both survive the testator, they split it.
→ If A dies first, B gets the whole.
2. Bequest to survivors
If a bequest is to multiple people, but the timeline isn’t specified, only those alive at the time of distribution receive the legacy.
Illustration:
A legacy is to be divided among children surviving at the time of A’s death.
→ Only children alive at that moment inherit.
3. Death without children clause
If A is given a bequest, but the will says “if A dies without children, then to B”—
→ If A survives the testator or dies with children, B doesn’t get anything.
Conditional Bequest
A conditional bequest is when the gift is subject to a condition that must be fulfilled.
1. Second bequest kicks in only if first fails
If a bequest is made to one person, and another is named only if the first one fails, then the second bequest only works if the failure happens in that exact way.
Illustration:
A gives his estate to his wife, but if she dies before him, then to B.
→ If A and wife die together and the sequence isn’t clear, B doesn’t get it.
2. Condition not met exactly
If a will asks for a specific condition to be fulfilled, and it’s not done on time or exactly, the bequest can be denied.
Illustration:
A legacy is given to B if he signs a document within a week.
B signs it late.
→ He does not get the legacy.
3. Condition substantially met
If the will imposes a condition, but it is substantially met, it may still be valid.
Exception:
Only when the delay is minor and the intent is honored.
4. Bequest ceases on event
A will may state that the bequest ceases to exist if a specific event happens or doesn’t happen.
Illustration:
A estate is given to B unless he marries under 25 without consent.
→ B marries early, without consent → He loses the estate.
5. Invalid ulterior bequest doesn’t affect original
If an additional bequest based on a condition is invalid (due to illegality or impossibility), it does not affect the original bequest.
Illustration:
Estate is given to A for life, unless he walks 100 miles in an hour (impossible).
→ That condition is void, so A keeps the estate.
6. Direction about how to enjoy is not binding
If the will gives a bequest but adds instructions like “use this to buy a business,” the legatee can still take it in cash.
Illustration:
Money is bequeathed to A to buy a car or business.
→ A can just take the money. He doesn’t have to buy anything.
Succession Knowledge Series
This is part of M2K Advisors’ comprehensive Succession Planning Series. If you missed earlier parts, here are some key topics already covered:
- Introduction to Succession Planning
- Types of Succession in India
- Hindu Succession Law (Male/Female/Intestate)
- Drafting & Revocation of Wills
- Probate, Attestation, and Letter of Administration
- Bequests and Legacies
- Taxation of Trusts (Parts I–IV)
- Landmark Court Rulings
- Other Laws Relating to Wills (FEMA, Overseas Assets)
Browse all editions here:
🔗 https://www.m2kadvisors.com
