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How is property divided if any of the heirs die after a will is made

The following article was first published in the Mint newspaper on 18th October, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

My grandfather left a will in the name of my father in 1996 for one-third share in his property. My father died in 1997 leaving me, my sister and mother behind. My grandfather died in 2008 leaving behind his three children and a wife (my grandmother). As per my knowledge, the will isn’t registered with the sub-registrar. In 2022, the land was divided into five equal shares, with the will not coming into consideration. 

I want to understand whether the will is valid considering that my father died before my grandfather? Can the will leave its content to me, my sister and my mother since we are heirs of my father ? If yes, will my father’s share be considered in the two-third of the land that doesn’t show up in the will?

—Name withheld on request

We understand that, in 1996, your grandfather made a bequest of one-third share in a property in favour of your father who died in 1997, leaving behind his wife, daughter and son. Your query infers that your father (i.e. the legatee) passed away before your grandfather (i.e. testator).

The Indian Succession Act deals with the provisions relating to lapsing of legacy. According to Section 105 of the act, if a legatee does not survive the testator, such a legacy cannot take effect, but the same lapses and forms part of the residue of such testator’s property, unless it appears by the will that such testator intended that it should go to some other person.

Section 105 of the Act also provides that in order to entitle the representatives of the legatee to the legacy, it must be proved that he survived the testator.

Since your father did not survive your grandfather, it seems that the heirs of your father  will not be entitled to the one-third share as per the will. That said, the provisions of the will need to be examined in order to confirm if such will prevents any lapse of legacy in clear words or if it provides for any alternate bequest in the event your father predeceasing your grandfather.

Therefore, subject to any contrary intention in the will, the one-third share will form part of the residue of your grandfather’s estate. As next steps, it will be worthwhile to discuss this with your attorney.

Further, the validity of your grandfather’s will, the same will neither be invalid due to your father predeceasing your grandfather, nor on account of the same not being registered.