A bequest may be defined as The property/benefits which flow under the will from the testator’s estate to the beneficiary. Since making a will is all about making a bequest or a legacy, it is important to understand the principles regarding a valid bequest, the time when it vests, etc. Let us look at these important principles. In this article, we shall study different kinds of bequests.

Bequests are classified mainly into three types:

• Onerous Bequests
• Contingent Bequests
• Conditional Bequests.

Onerous Bequests:

The general rule is that when several independent gifts are made to the same legatee, the legatee may reject the onerous legacies without forfeiting the others. It is no objection that the legatee by repudiating an onerous bequest will throw a burden on the testator’s estate. But in such cases, it is the intention of the testator to be gathered from the will, whether the legatee must elect to take all or none of the gifts in the will or whether he may accept the beneficial and repudiate the onerous. The rule laid down in this section is enacted in S. 127 of the Transfer of Property Act. Sections 122 and 123 of the Indian Succession Act, deals with onerous bequests.

According to Section 122 of the Act, 1925 where a bequest imposes an obligation on the legatee, he can take nothing by it unless he accepts it fully.

Illustration:

A, having shares 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).

Where onerous and beneficial property is included in the same bequest, the legatee cannot disclaimer the onerous and accept the beneficial, unless the will manifests sufficient intention of the testator to the contrary. The legatee has no claim of election; either he must accept the whole or none. If he accepts it, he takes it with all the benefits and burdens. If the condition of the gift requires him to do some act involving expense, he is, if he accepts the gift, personally liable for that act being done. But the legatee is not bound to accept the gift. He may disclaim it in which event he forfeits the entire gift. Thus, the beneficiary 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.

Disclaimer may be made orally or by writing. It may be expressed or implied. If the person is sui juris, he may be called upon by the executor to intimate his decision. If the legatee unequivocally disclaims, he cannot afterwards claim it nor can he, having once accepted the gift, afterwards repudiate it. In English law, assent by a donee is presumed unless and until he disclaims and the same principles is extended even to onerous gifts.

In Cooper v. Gijers 1899 2 Ch.54 case, the Court 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 famous English case, 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[1]tenant (i.e., the wife) was under no obligation to repair the property.

According to Section 123 of the Act, 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.

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 term, 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.

Where a testator makes two distinct bequests in the same will to the same person, one of which happens to be onerous and the other beneficial, prima facie the legatee is entitled to disclaim the onerous and to take the other. Where there are several gifts to the same legatee, some of which are onerous and some beneficial, the question has in some cases, arisen whether he is bound to take all, or none, or whether he can elect to take the beneficial and reject the onerous gift.

Contingent Bequest:

A contingent bequest is one which is effective only on the happening or not happening of a contingency. In general, contingent bequests are specific in nature and fall through if the conditions aren’t met. Sections 124 and 125 of the Indian Succession Act, deals with contingent bequests.

According to Section 124 of the Act, 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:

1. 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.
2. 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.
3. A legacy is bequeathed to A when and if he attains the age of 18, and, in case of his death, to B. A attains the age of 18. The Legacy to B does not take effect.
4. A legacy is bequeathed to A for life, and, after his death to B, and, “in case of B’s death without children,” to C. The words “in case of B’s death without children” are to be understood as meaning in case B dies without children during the lifetime of A.
5. A legacy is bequeathed to A for life, and, after his death to B, and, “in case of B’s death,” to C. The words “in case of B’s death” are to be considered as meaning “in case B dies in the lifetime of A”.

Consider a bequest “I hereby leave Rs.3,00,000 to my daughter Asha, but only on the condition that she graduates from a four-year university course before the age of 23.” In this example, Asha will only receive her inheritance with the contingency that she graduates from college by a certain age. If she does not meet the conditions, she will not receive this particular bequest.

A contingency bequest can also be made to provide alternative arrangements in case that the grantor’s beneficiary passes away before the estate plan is executed. For example a bequest like “If neither my spouse nor any descendant of mine survives me, then I give, bequeath, and devise the rest, residue, and remainder of the property, both real and personal, wherever situated, which I may own or be entitled to at my death, to The Asiatic Library, Mumbai.” 

According to Section 125 of the Act, 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:

1. 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.
2. 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.
3. 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.
4. 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. Afterward C dies in the lifetime of A. The legacy goes to the representative of C.

Conditional Bequests:

Conditional bequests are those bequests which take effect only if certain conditions are fulfilled. Conditional bequests should be distinguished from contingent bequests. While contingent bequests are dependent upon the happening of some events, conditional bequests require the doing or absistence from doing of certain acts. Sections 126 to 137 of the Indian Succession Act, deals with conditional bequests.

Conditions are of two kinds: conditions precedent and conditions subsequent. The former precedes the vesting of estate, the latter are to be performed after the estate has become vested and if not performed may, in many cases, cause interests already vested to be divested or to be altogether void. Where the condition is precedent, the estate is not vested in the grantee until performed, but where the condition is subsequent, the estate vested immediately in the grantee and remains in him till the condition be broken. What is a condition precedent and what is a condition subsequent must be ascertained from the wordings of the will as there is no particular format or language required.

A makes a gift of his property to B on a condition that B shall marry with the consent of C, D, and E. B marries with the consent of only C and D because E died early. In this case, the property stands transferred in favour of B as he fulfilled the condition precedent imposed by A.

‘A’ transfers a farm to B with a subsequent condition that if B goes to England within 3 years from the date of such transfer, his interest in firm shall cease to exist. B went to England within 2 years of such transfer. In such a situation, his interest in the farm shall cease to exist as he did not comply with the condition subsequent to the transfer of property.

Condition Precedent	Condition Subsequent
Contingent precedent precedes the vesting of estate.	Condition subsequent are to be performed after the estate has become vested.
Where the condition is precedent, the estate is not vested in the grantee until performed	Where the condition is subsequent, the estate vested immediately in the grantee and remains in him till the condition be broken.
Sections 126 to 128 of the Indian succession Act, 1925 relate to conditions precedent	Sections 129 to 137 of the Indian succession Act, 1925 relate to conditions subsequent
In the case of condition precedent, an interest once vested can never be divested by reason of non-fulfillment of the condition.	In the case of condition subsequent, interest even though vested, is liable to be divested by reason of the non-fulfillment of the condition.
According to Section 126 of the Act, if a bequest is made on a condition precedent which is impossible, immoral, or against public policy, the bequest is void.	In condition subsequent is impossible, immoral, or against public policy, the transfer becomes absolute and the condition will be ignored.
In the case of condition precedent, the condition precedent must be valid in law.	In the case of subsequent, it need not be so, and the invalidity of the conditions can be ignored.
In the case of condition precedent, the doctrine of cy-press applies and the condition precedent is fulfilled if it is subsequently complied with.	The doctrine of cy-press does not apply.
A makes a gift of his property to B on a condition that B shall marry with the consent of C, D, and E. B marries with the consent of only C and D because E died early. In this case, the property stands transferred in favour of B as he fulfilled the condition precedent imposed by A.	‘A’ transfers a farm to B with a subsequent condition that if B goes to England within 3 years from the date of such transfer, his interest in firm shall cease to exist. B went to England within 2 years of such transfer. In such a situation, his interest in the farm shall cease to exist as he did not comply with the condition subsequent to the transfer of property.

Provisions Related to Condition Precedent:

According to Section 126 of the Act, a bequest upon an impossible condition is void.

Illustrations:

1. An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.
2. A bequeaths 500 rupees to B on condition that he shall marry A’s daughter. A’s daughter was dead at the date of the will. The bequest is void.

A testator may attach to his bequest, conditions, provided such conditions are not impossible to perform, are not unlawful, or contrary to public policy, or in general restraint of marriage. The impossibility must be in the nature of things. The section deals with impossible conditions. If the condition is impossible for performance, the gift is void. The impossibility may have arisen at the date of the will as in Illustration (2) or subsequent.

It should be kept in mind that, if these conditions are conditions precedent, they will make the transfer void for the conditions being void themselves. However, if the condition is a condition subsequent, the transfer may continue to be valid even if the condition is void.

In Rajendra Lal v. Mrinalini Dassi, AIR 1922 Cal 116 case, a bequest was made upon condition that the legatee should excavate a certain tank. The testator himself, subsequent to the will, excavated the tank and the condition became impossible of performance. It was held that the bequest failed. But if the fulfilment of the condition precedent is rendered impossible by operation of law before the date of the will, then the condition is void and the gift remains.

According to Section 127 of the Act, a bequest upon a condition, the fulfilment of which would be contrary to law or to morality is void.

Illustrations:

1. A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void. (Contrary to Law)
2. A bequeaths 5,000 rupees to his niece if she will desert her husband. The bequest is void. (Contrary to morality)

A condition of forfeiture in case the legatee embraces a peculiar faith, or marries a person embracing a peculiar faith, or marries a domestic servant is not against public morality.

According to Section 128 of the Act, where a will imposes a condition to be fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with.

Illustrations:

1. A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A marries with the written consent of B. C is present at the marriage. D sends a present to A previous to the marriage. E has been personally informed by A of his intentions, and has made no objection. A has fulfilled the condition.
2. A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. D dies. A marries with the consent of B and C. A has fulfilled the condition.
3. A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries in the lifetime of B, C and D, with the consent of B and C only. A has not fulfilled the condition.
4. A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A obtains the unconditional assent of B, C and D to his marriage with E. Afterwards B, C and D capriciously retract their consent. A marries E. A has fulfilled the condition.
5. A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries without the consent of B, C and D, but obtains their consent after the marriage. A has not fulfilled the condition.
6. A make his will whereby he bequeaths a sum of money to B if B shall marry with the consent of A’s executors. B marries during the lifetime of A, and A afterwards expresses his approbation of the marriage. A dies. The bequest to B takes effect.
7. A legacy is bequeathed to A if he executes a certain document within a time specified in the will. The document is executed by A within a reasonable time, but not within the time specified in the will. A has not performed the condition, and is not entitled to receive the legacy.

Void Conditions:

• Conditions which are impossible to perform
• Conditions forbidden by law
• Conditions, if permitted, would defeat the provisions of any law
• Conditions involving or implying injury to person and property of another
• Conditions that are regarded as immoral or opposed to public policy by the court:
• Fraudulent Conditions

It should be kept in mind that, if these conditions are conditions precedent, they will make the transfer void for the conditions being void themselves. However, if the condition is a condition subsequent, the transfer may continue to be valid even if the condition is void.

If the condition is performed cy-pres as it is called that would be enough. But where there is a condition precedent to the vesting of the interest of a devisee and on his failing to perform the condition, the property is given over, that condition must be complied with strictly. With regard to conditions requiring consent to marriage, the court may hold a condition satisfied when it has been complied with substantially, though not in terms, whether the condition is precedent or subsequent but in case of a condition subsequent when there is a gift over, the condition must be strictly performed.

In Rajendra Lal v. Mrinalini Dassi, AIR 1922 Cal 116 case, a bequest was made upon condition that the legatee should excavate a certain tank. The testator himself, subsequent to the will, excavated the tank and the condition became impossible of performance. It was held that the bequest failed. But if the fulfilment of the condition precedent is rendered impossible by operation of law before the date of the will, then the condition is void and the gift remains.

Conclusion:

Bequests refer to transfers of personal property. Personal property is any type of movable property that is not permanently affixed to a piece of land. Personal property includes jewelry, clothes, furniture, money, motor vehicles, and other items. The Indian Succession Acts, classify bequests into three types onerous bequests, contingent bequests, and conditional bequests.