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venkatesh k   18 June 2024

Inheritance of property through will

Does a will bind a posthumously inherited property? 
Scenario: Ms. B writes a will and dies. In Ms. B's will, Mr. A (brother) is a beneficiary who pre-deceased Ms. B. Mr. A's legal heirs are Mr. C (son) and Ms. D(mother). Mr. A had written a will in which he bestows his estate upon Mr. C. Given that Mr. A inherited a property posthumously, does his will bind such property? Or is Ms. D (mother of the deceased Mr. A and Ms. B) entitled to the property which devolved upon Mr. A posthumously on the demise of Ms. B?



 5 Replies

P. Venu (Advocate)     18 June 2024

Is this posting a query or riddle?

"Given that Mr. A inherited a property posthumously, does his will bind such property" What is the legal basis for this presumption?

Please post simple facts insted of setting question paper.

venkatesh k   18 June 2024

 Mr. A inherited a property posthumously, does his will bind such property. Reply is solicited for this only please

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T. Kalaiselvan, Advocate (Advocate)     18 June 2024

As per Section 105, of Indian Succession Act, if the legatee (person named in will as, successor of the property or, one who receives legacy in will) dies before the testator (person who makes the will regarding succession of his property), then the will or legacy cannot take effect.

However, as per Section 106 of the Act, in case of joint legatees, the legacy does not lapse and the property of the departed legatee goes to the surviving legatee, unless the testator has not provided any other instruction in will that the property of departed legatee will go to some other person.

Also, as per Section 109 of the Act, in case the legatee is a child or lineal descendent of testator, dies leaving a lineal descendent (children, grand-children, great grandchildren and so on) of him who survives the testator then, the will or bequest shall not lapse and will take effect as the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will.

So, by above statements it is clear that in case of death of sole legatee, the will cannot operate. In case of joint legatee, if the departed legatee is a child or grandchild (lineal descendent) of testator and has his own child (lineal descendent) then, the share of the departed legatee in “will” will be succeeded by his lineal descendent by the rule of general succession after the death of testator. In case joint legatee is not a lineal descendent of testator or do not have any lineal descendent of his own, then the share of departed legatee will be given to the surviving legatee.

venkatesh k   18 June 2024

Thank you for your detailed reply, sir. In the case I refer, one of the legatee  B predeceased the testator A and had made a Will on his share of the property he would inherit posthumously on the basis of the Will of A in favour of C. The clarification I need is whether the share of the property inherited posthumously by B has to be passed to C only or to the other legal heirs also

Aadil (Student)     21 June 2024

Dear Venkatesh,

Thank you for your query! I am Aadil and I will try to answer your question.


The short answer to your question is NO. The son cannot inherit the property.


The laws related to succession and will are contained in the Indian Succession Act of 1925. According to the same, any person of sound mind may create a will as long as they are aware of the consequences of their action, irrespective of whether they are deaf, dumb, blind, etc.

Section 105 of the Indian Succession Act is of significance here as it states that if the legatee does not survive the testator, the legacy lapses and becomes part of the residue of the testator’s property. This means that in this case, since Ms. B created a will with Mr. A as the sole beneficiary, the legacy which was to be bequeathed to Mr. A lapses since he died before the testator, Ms. B.  Unless the will explicitly mentions that the property will be bequeath to someone else if the legatee does not survive the testator, the legacy will lapse.

If he had died right after the death of Ms. B, then according to section 109 of the same act his children could have inherited this property, as the lineal descendants of a legatee can inherit this property if the legatee died immediately after the death of the testator.

Since the person to whom the property was to be bequeathed is not in existence at the time of the testator’s death, such bequest shall be deemed to be void as per section 112 of the Indian Succession Act. It is therefore possible that the person be treated as dying intestate in which case the property shall devolve upon their legal heirs as per the Hindu Succession Act.

I hope this helps. Thank you for your time and patience!




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