bequests and it’s types

Introduction.

The concept of bequest is used in Testamentary succession. When a person who by the way of will transfers the property to another person a bequest plays an important role. The act of leaving something for other through a will is called bequest. Bequest are of various types. For a will to be valid the bequest on which it is prepared has to be fulfilled.

Meaning of Bequests.

Bequest is the act of transferring or transferring something by will. In particular, the bequest relates to the transfer of personal property such as money or household items. (Although some people may use the term “will” to refer to real estate, wills have traditionally been associated only with personal property.) The transfer of real estate by will is called “devise.” When it is said that someone has “inherited” a property, it means that they have transferred that property by will. A bequest must be part of a valid will to be enforceable, and there are many state and federal laws governing wills. In practice, much of the probate process focuses on determining whether a will is valid.

Types of Bequests.

Bequests are classified mainly into three types:

(1) Onerous Bequests

(2) Contingent Bequests

(3) Conditional Bequests.

(1) Onerous Bequests: Where a bequest imposes as obligation on the legatee, he can take nothing by it unless he accepts it fully. (Sec.122)[1]

Illustration: – A, having share in X, a prosperous joint stock company, and also shares in Y, a joint stock company in difficulties, in respect of which shares heavy calls are expected to be made, bequeaths to B all his shares in joint stock companies; B refuses to accept the shares in Y. He forfeits the shares in X.

This section seems to ensure that a person who wishes to enjoy the roses must also be prepared to bear the thorns. The legatee is not allowed to elect; either he takes the whole or he takes nothing. He cannot reject the onerous part of the bequest, and affirm the beneficial part thereof. In other words, he cannot blow hot and cold at the same time.

In Cooper v. Gijers[2], it was held that life-tenant of a lease must, during the continuance of his interest, pay the rent and perform all the covenants and conditions of the lease.

In another English case, In Re Courtier, a man bequeathed some leasehold lands to his wife for life, and thereafter to certain other persons (remaindermen). The property was badly in need of repairs, and the remaindermen applied for an order to compel the wife to put the property in repairs. The court held that the life-tenant that is wife was under no obligation to repair the property.

Section 122- provides that if onerous and beneficial properties are included in the same bequest the legatee has no choice to elect; the legatee either takes the whole bequest or he takes nothings. In other words, the legatee either accepts or rejects the bequest as a whole. It is not open for the legatee to accept the beneficial part of the bequest and to reject the onerous part. Section 123 -However, where a will contains two separate and independent bequests to the same person, the legatee is at liberty to accept one of them and refuse the other, although the former may be beneficial and the latter onerous.[3]

Illustration: – A having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the terms, and which is higher than the house can be let for, bequeaths to B the lease and a sum of money. B refuses to accept the lease. He will not by this refusal forfeit the money.

(2) Contingent Bequests: A contingent bequest is a bequest which is effective only on the happening or not happening of a contingency. Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.

Section 124 – Bequest contingent upon specified uncertain event, no time being mentioned for its occurrence

Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.

Illustrations

(i) A legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B does not take effect.

(ii) A legacy is bequeathed to A and in case of his death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect.

Section 125 – Bequest to such of certain persons as shall be surviving at some period not specified

Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the legacy shall go to such of them as are alive at the time of payment or distribution, unless a contrary intention appears by the will.

Illustrations

(i) Property is bequeathed to A and B to be equally divided between them, or to the survivor of them. If both A and B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B survives the testator, it goes to B.

(ii) Property is bequeathed to A for life, and, after his death, to B and C, to be equally divided between them, or to the survivor of them. B dies during the life of A; C survives A. At A’s death the legacy goes to C.

(iii) Property is bequeathed to A for life, and after his death to B and C, or the survivor, with a direction that, if B should not survive the testator, his children are to stand in his place. C dies during the life of the testator; B survives the testator, but dies in the lifetime of A. The legacy goes to the representative of B.

(iv) Property is bequeathed to A for life, and, after his death, to B and C, with a direction that, in case either of them dies in the lifetime of A, the whole shall go to the survivor. B dies in the lifetime of A. Afterwards C dies in the lifetime of A. The legacy goes to the representative of C.

(3) Conditional Bequests: A conditional bequest is a bequest which depends upon the performance or non-performance of a certain condition. A testator is at liberty to attach the conditions to the bequests made by him under the will and such conditions will be given effect provided such conditions are not impossible of performance not unlawful or not contrary to the public policy.

The conditions are of two types: (i) Conditions Precedent and (ii) Conditions Subsequent. It may be noted that the following two types of conditional bequests are void:

(1) A bequest upon an impossible condition. (Sec.126)

Illustration: An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.

(2) A bequest upon a condition, the fulfilment of which would be contrary to law or to morality. (Sec.127)

Illustration: A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void.

Ererton v. Earl of Brownlow is a good example of a condition against public policy or public morality. In this case, property was given to Lord Alford with a proviso that if he died without acquiring a particular title, then the estate was to cease. The House of Lords held that such a condition was against public policy, and therefore, void and that heirs of Lord Alford were entitled to the property absolutely.

Doctrine of Cy-Pres: This section lays down the well-known rule of Cy-pres. As regards the performance of conditions, the general rule is that in case of a condition precedent, if the condition is performed cy-pres, as it is termed that is to say, if it has been substantially complied with, it will be sufficient.


[1] Sec 122 of the Indian Succession Act,1925.

[2] Cooper v. Gijers 1899 2 Ch.54.

[3] Sec 123 of the Indian Sucession Act, 1925.

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