Lapse of Legacy in Family Law

LAPSE OF LEGACY

SUBMITTED BY: SOORYA PRADEEP(712) AND SRUTHI ANIL(713) 6th Semester, Nuals.

CONTENTS  SECTION 105…………………………………………….Pg 3-6  SECTION 106…………………………………………….Pg 7-9  SECTION 107…………………………………………….Pg 9  SECTION 108…………………………………………….Pg 10  SECTION 109…………………………………………….Pg 11  SECTION 110…………………………………………….Pg 12  BIBLIOGRAPHY…………………………………………Pg 13

LAPSE: INTRODUCTION The term “lapse” is applied to the failure of testamentary gift owing to the death of the legatee before the death of the testator either before or after making of the will. In order to entitle the legatee to his legacy he must survive the testator, otherwise the legacy cannot take effect. The testator is not restricted in making his will to the legatees in existence at the date of the will. A legatee may not be born at the date of the will but he must be in existence when the testator dies. This stands embodied in Section 105, which reads hence: 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 B 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.

In S.J.Lakshmi Bai v. Pothana Apparao1 it was held that this section does not say or imply that the testator must have expressly envisaged the possibility of lapse in consequence of the legates dying during the lifetime of the testator and must have made a provision for that contingency. The section is only an affirmation of the exclusive right of the legatee for her share vis-a-vis the legatees under the will. It is not an expression against lapse when the legatee predeceased him.

CIRCUMSTANCES THAT BRING ABOUT LAPSE: The only event mentioned in section 105 is the death of the legatee in the lifetime of the testator. The legatee must have had a beneficial interest in order that this doctrine operates. As a rule, a devisee or legatee must survive the testator in order that he or his estate may have the benefit of the gift and a confirmation by codicil of a gift in a will to a legatee who has died since the date of the will, does prevent a lapse. On predecease of beneficiary to the testator, bequest lapses. 2 On refusal of legacy by the beneficiary, bequest lapses and intestate succession operates.3 Under the will of a testator who dies on the commencement of the Administration of Justice Act 1982, in the absence of a contrary intention in the will, a devise or bequest to a child or remote descendant of the testator does not lapse if the intended beneficiary dies before the testator, leaving an issue, but takes effect as a devise or bequest to the issue living at the testator‟s death. Even when the legacy is given to A and his executors, administrators and assigns, if the legatee A dies before the testator, the legacy lapses.4 When the circumstances make it uncertain whether the testator or the beneficiary died first, the legacy will lapse 5. In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator, and the onus of proof will be on the representatives. Not only a legacy but also a bequest to the debtor of the debt due from him will lapse like any other legacy, if the debtor does not survive the testator. The doctrine of lapse applied to contingent legacies. In the case of contingent legacy it will lapse on the death of the legatee before the testator whether the contingency does 1

(1969) 2 SCC 91: AIR 1969 SC 1355 F.G.P. Ltd v Sleh Hooseini Doctor. (2009) 10SCC 223 3 Mukesh Kumar Gupta v. Smt. Prabha Vaithiyanath, ors. 4 Elliott v. Davenport(1705) 1 P Wms 83 5 Agha Mir Ahmed Shah v. Mudassir Shah. (1944) 2 Mad LJ 354. 2

or does not happen, and the giftover will take effect6. It also applies to conditional legacies, e.g, if a legacy is to a woman “as long as she remains unmarried” and she marries in the lifetime of the testator, the legacy will lapse. Lapse also applies to powers exercised by will. The appointee must survive the donee of the power in order to take, but the interest of the persons taking in default of appointment does not fail by the death of the donee of the power before testator.7

‘Unless it appears by the will that the testator intended that it should go to some other person:. – In order to prevent a lapse the testator must do two things: he must in clear words exclude the lapse and he must clearly indicate who is take in case the legatee should die in his lifetime. A mere declaration that the legacy shall not lapse is not sufficient to prevent lapse. But where bequest is to „A or his heirs,‟ or to „A or his issue‟ the word “or” is construed as substitutional so as to prevent as lapse. In the following cases the legacy will not lapse: a) If there is an express intention to the contrary, e/\.g. where it is clear that in the vent of the legatee predeceasing the testator, an alternative bequest is intended to be substituted as unders.96. The doctrine of lapse does not apply, even though the legatees predeceased the testator when the legacy is given with the intention of discharging a moral obligation, whether legally binding or not, which is recognized by the testator and is existing at his death. b) In case of legacy to a legatee for life with remainder to another legatee, if the tenant for life dies befoe the testator \, the remainder takes effect upon the death of the testator. So, if a legacy be given to A on his completeing the eighteenth year with a limitation over to B, IF A should before completing the eighteenth year and A die sin the lifetime of testator under the prescribed age, the legacy over to B does not lapse will take effect. But the rule is different when A dies in the lifetime of the testator ut after completing his eighteenth year. In such a case every part of the bequest lapses, i.e. the legacy to A lapses and the legacy also does not take effect. c) If a legacy is given to two persons jointly and one dies before the test the other takes the whole.(s.106) The doctrine of survivorship prevents lapse, but not if the gift is to persons as tenants-in-common.(s.107) d) In the absence of a contrary intention in the will, a bequest to a child or other lineal descendant of the testator does not lapse if the child of other lineal descendant dies before the testator.(s.109) 6 7

Willing v Paine (1731) 3 P Wms 113 Hardwick v. Thurston(128) 4 Russ 380.

e) Where the bequest is to a trustee for another and the trustee dies before the testator, the bequest does not lapse.(s.110) f) Where the bequest is to a class.(s.111)

Section 21 of the Hindu Succession Act acts a proviso to sub-s(2) of s.105 of the Succession Act in cases governed by the Hindu Succession Act. Consequently, in case of commorientes, that is to say, of persons who perish at the same time in consequence of the same calamity, it is for the party disputing the statutory presumption under s.21 to prove by defined and warranted conclusion to the contrary that the elder survived the younger and rebut the presumption. Section 21 applies both to testamentary and intestate succession. If the will contains no residuary bequest, the property comprised in the lapsed legacies will devolve upon the testator‟s statutory next-of-kin. If a specific demonstrative or pecuniary legacy lapses, the property therein comprised passes under the testator‟s residuary bequest and if there is no residuary bequest, the property comprised in the lapsed legacies will devolve upon the testator‟s statutory next-of-kin. Effect of lapse: Unless a contrary intention appears in the will, a lapsed legacy will form part of the residue of the testator‟s property and shall be included in the residuary bequest. The residue referred to in this section corresponds to the residue referred to in s.25 of the English Wills Act, 1837, and means the general universal residue. But if the will contains no residuary clauses, the lapsed legacy will go to the heirs of the testator as if he had died intestate. (ss 107-108). Bequest of properties for two purposes is not a „joint bequest‟. In the absence of allocation of the amounts to be utilized for the two different purposes, it must be presumed that the fund was to be utilized in equal moieties for the two purposes. Failure of one of the purposes will result in the moiety of the amount devised fall into the residue.8 No lapse if beneficiary in a mutual will dies after the death of one testator: It is the death of the first testator to die without revoking his own will which renders the will of the survivor irrevocable in equity. Hence, a legatee to the mutual wills, who survives the first testator but predeceases the second, does lose his legacy on the ground of lapse.

8

S..JhansiLaxmi Bai v. P.Apparao, AIR 1969 SC 1355[1970] 1 SCR 28.

SECTION 106: Legacy does not lapse if one or two joint legatees 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: SCOPE – Section 106 deals with a bequest to persons as joint tenants. The essential characteristics of a joint tenancy are: 1) 2) 3) 4)

Unity of possession; Unity of interest; Unity of title; and Unity of the time of commencement of title.

A tenancy-in-common has only unity of possession.9 Joint tenancy – Where a legacy is given to several persons concurrently, questions arises whether these persons take as joint tenants or as tenants-in-common. This will depend on the context of the will. A simple legacy to A and B will prima facie be to the as joint tenants so that if A dies before the testator, B will take the whole legacy. Although the section speaks of a legacy to two persons, the same rule applies if the bequest is to several persons, and the share of anyone that dies will not lapse but will go to the survivor. In Barnes v Allen, there was a devise of residue to the testator‟s wife and if she dies without issue to the testator‟s two brothers or if one of them should be dead to the survivor. Both the brothers died in the lifetime of the wife. It was held that the legacy was to the two brothers as joint tenants and went to the representatives of the survivor. This case was followed in Jairam v Kuverbai. 10 Again, although in this section it is stated that if the legacy is to two persons jointly and one of them dies, the survivor takes the whole, the same rule applies if one of the legatees is incapable of taking by reason of his having attested the will or otherwise, the other who is incapable of taking the will takes the whole. This case was followed and the rule laid down applied, in Nandi Singh v Sita Ram.11 The general tendency of the authorities seems to be lean against joint tenancy in the construction of the wills. But if the will does not in any way indicate an intention to create a tenancy-in-common the presumption will be in favour of joint tenancy.12

9

Adm-General v Money, 15 Mad 448,469. (1885) ILR 9 Bom 491. 11 (1889) ILR 16 Cal 677)PC) 12 Alankara v. Santhiagu (1964) 1 Mad LJ 258 10

Section 106 is applicable when legacy is given to two persons jointly. Where a testator executed a will bequeathing property to two legatees, s.106 has n application as joint tenancy cannot be from the recitals in the will. When a testator executed a will bequeathing certain property to her two daughters and one of the daughters predeceased the testator leaving her heirs, the legacy in her favour on the death of the predeceased daughter could not be said to have lapsed, if her legal heirs survive the testator. 13 It is generally held that if the grant is to persons who are incapable of forming a joint Hindu family in India, the donees takes the property as tenant-in-common.

Legacy does not lapse if one or two joint legatees dies: Under normal circumstances, if the bequest is in favour of two persons, it is presumed that they take the property as tenants in common. But if there are distinct words to the effect that the testator intended that there shall be a joint tenancy by them, of course the legatees will take the property as joint tenants. This was held in Dakshayan v Bala Krishnan Nair14.

Christians – Christians are governed by this Act and in the matter of constitution of the will of a Christian if the bequest is made simply to two persons then the principles of English law as propounded in this section they could take as joint tenants and on the death of one, the survivor would take the whole property. In case of Christians, a joint tenancy is presumed rather than the tenancy in common.

Joint tenancy as applicable to Hindus: Although this section applies to Hindus, in construing the wills of Hindus the rule laid down in this section should be applied with great care. The trend of the decisions lay down the flowing propositions viz which property is given without specification of the individual interests to persons who are members of a joint Hindu Family, it does not necessarily follow that they take as joint tenants. 15If the bequest is to persons who constitute such a family, the prima facie view is that they take severally and that those who argue in favor of joint tenants have to show some clear foundation for it in terms of the will. If on the other hand the bequest is to persons who are incapable of forming a 13

K.VKrishna Veni v K.K.Rajagopal AIR 1990 Ker 337: 1990 KLT 23. 1995 KLT 267: 1995 KLJ 226. 15 Kishori v Mudra, 33 AII 665 14

Hindu joint family they generally take as tenants in common.16 The same rule applies to a gift to the Hindu deities without specification of shares and they will take in equal shares. Harris CJ, observes in this case that even if the Succession Act created a joint tenancy such tenancy would not be created by a Hindu will. Section 106 merely provides or what is to happen if one or two persons who were jointly named legatees dies before the testator. This section in no way creates a joint tenancy. The reference in s.106 to two persons jointly means a bequest to a plurality of persons and not just to two persons in the arithmetical sense. Section 106 is not a rule of construction but a provision for devolution. Though joint tenancy is unknown to Hindu Law, it is open to a Hindu Testator to make a joint bequest in favor of two or more legatees. 17

SECTION 107 Effect of words showing testators intention to give distinct shares: if a legacy is given to legatees in words which show that the testator intended to give them the 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 testators property This section lays down the rule that in the case of a bequest to two or more persons as tenants in common, if one of the legatee dies before the testator ,his share will not go to the survivor as in the case of joint tenancy but will fall into the residue if there is a residuary clause in the will. If there is no such residuary clause or where, the request is to two or more persons as residuary legatees then the share of the person who dies before the testator will go as indisposed and will be distributed as on intestacy. There is however one exception to this rule under section 111 of the Indian Succession Act This section favours tenancy- in- common against joint tenancy. Distinction between a joint tenancy and tenancy-in-common In joint tenancy there is a unity of possession, unity of interest, unity of title and unity of the time of such commencement of such title. Between a joint tenancy and a tenancy-incommon the only similarity that exists is the unity of possession. Except that, a tenantin-common is to his undivided share in the position of the owner of that share. A tenancy-in-common may also be created by the severance of joint tenancy, as for instance, by alienation by one of the joint tenants.18

16

Yathirajulu v Mukunthu, (1905) ILR 28 Mad 363. Sinna Raj Pillai v. Ramayee Ammal, AIR 1969 Mad 96. 18 Jogeshwar vs Ram chandra 17

Where a Hindu testator makes a bequest to persons constituting of a joint Hindu family, the view is that they take severally and that those who argue in favour of joint tenancy have to show some clear foundation for it in the terms of will. If the bequest is to persons who are incapable of forming a joint Hindu family, the inference is stronger that they take as tenants-in-common

Tenancy in common with survivorship A rule was established in the case of Cripps vs Wolcott19which said that there is a gift to a number of persons and the survivors and survivors of them, in default of any expressed intention of the testator prima facie refer to the period of distribution. SECTION 108 When lapsed share goes as indisposed of: where a share which lapses is a part of the general residue bequeathed by the will, that share shall go as indisposed of. Under Section 103,a legacy that lapses will form a part of the residue and will go to the residuary legatee. This section comes into operation when the residue itself lapses by the death of the residuary legatee before the testator or in any other manner. Where the residue is indisposed of or lapses, it will go as on intestacy and be divided amongst the next-of-kin of the deceased and all the next-of-kin will share in spite of any one being expressly excluded by the will. If the residue that lapses is a particular residue, it will fall into the general residue. When there are several residuary legatees and the residue is given to them as tenants-in-common the share of any one, who dies in the testator‟s lifetime, will lapse and will not accrue in the augmentation of the remaining parts as a residue of a residue but will devolve as indisposed of. If the residue is indisposed of, it must be divided amongst all the next-of-kin of the testator as on intestacy, notwithstanding the fact that the testator has by his will directed that one of them shall take no share in his property. In England however the rule is that where the testator in his will makes a declaration excluding one or some only of the next-of-kin in clear language, it would be held valid. This section is based on the English rule in Skrymsher vs NorthCote 20 which was followed in Vedabala Debi vs The official Trustee of Bengal21 where residue was given on trust which failed on the ground of uncertainty and it was held that there was a 19

4 Mad 15 1 Swan 566 21 62 Cal 1062:39 CWN 1154 20

resulting trust of the residue to the heirs of the testators as on intestacy. Modern decisions however lay down a different rule. They state that if there is in the will an intention to the contrary, that intention must be given effect SECTION 109 When bequest to testators child or lineal descendant does not lapse on his death in testators 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 as if the death of the legatee had happened immediately after the death of the testator, unless the contrary intention appears by the will This section is an exception to the doctrine of lapse. To prevent the lapse under this section, three conditions must be fulfilled. 

The bequest must be to any child or other lineal descendant of the testator.



The child or lineal descendant dies in the lifetime of the testator but any lineal descendant of his survives the testator .The person entitled to the bequest must be ascertained as to the date of the death of the child and not as at the date of the death of the testator



There should be no contrary intention in the will.

The words „unless a contrary intention appears by the will‟ must be construed to mean that there must be clear ,unambiguous and unequivocal intention by the testator in the will itself before a bequest in favour of a lineal descendant, should he die before the testator can be defeated. The expression means that there must be clear, unambiguous intention by the testator in the will itself before the bequest in the favour of a child or lineal descendant can be defeated. The word „child‟ used in this section does not include an illegitimate child but includes an adopted child in case of Hindu‟s This section corresponds to s 33 of the English wills Act 1837, which is now substituted by the s 19 of the Administration of the Justice Act,1982 To prevent lapse under this section, it is not necessary that the lineal descendant who is alive at the death of the testator, should be the same lineal descendant who was alive at the death of the legatee. It is sufficient that any lineal descendant is alive. Expression of contrary intention

Since the section carves out an exception in the general rule of lapse, the contrary intention to restore the applicability of the rule cannot be lightly inferred. The contrary intention to avoid lapse of legacy shall have to be gathered in the terms of the wills itself. There should be an express statement which is necessary to exclude the operation of the section and it cannot be inferred from circumstances developing after the death of the testatrix. In Krishna veni vs Rajagopal22,the Kerala High Court was dealing with a case where the statement in the will was that none other than the legatees shall take her share. It was contended that to mean that it was an affirmation of an exclusive right of the legatee for her share vis-a-vis other legatees under the will and it was not an expression of any contra intention on the part of the testator that the bequest should lapse if the legatee predeceased him. Section 109 being an exception to the general rule ,the intent of the section appears to be to prevent a lapse unless the testator had indeed expressed a clear contention that the legacy should lapse on the death of the legatee before the succession opened

SECTION 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 testators lifetime, of the person to whom the bequest is made. This section is another exception to the doctrine of lapse. If the property is bequeathed to A in trust for B, the beneficial interest of B will not lapse by the death of the trustee A in the lifetime of the testator. The testator may give a beneficiary such rights to secure his legacy as this law allows. Thus a legacy may be charged upon a specific land and in addition, the legatee may be given a right of entry upon the land to enforce the payment of legacy. I f therefore, there is a gift to A charged with a sum payable to B,the legacy to B does not lapse by the death of A, before the testator.

22

(1998) 1 KLT 353,406

BIBLIOGRAPHY Indian succession Act by Paruck,10th edition 2011