Prior to his demise, my father executed a will bequeathing specified properties to me and my mother. The will also provided that the rest of the properties not identified in the will shall go to me and my sister, equally. My mother passed away prior to his demise without making a will, but his will was not subsequently updated. We recently discovered that my father had purchased a piece of land, which was omitted to be identified in the Will. My sister is claiming a share in the land and a part of my mother’s share in the other properties. Can she do that, and what are my options?
—Name withheld on request
Your sister appears to be making two separate claims: first, in respect of the land which has not been specifically bequeathed to you and your late mother under the will; and second, in respect of the properties which have been specifically bequeathed to your late mother under the will.
While a comprehensive response can be provided only after reviewing your father’s will in its entirety, some relevant legal principles are explained below for your reference.
Your late father’s will specifically bequeaths certain identified properties to you and your late mother. You and your sister appear to have been designated as the ‘residuary legatees’ — the persons entitled to receive the residue of the estate remaining after the specific legacies are distributed. As regards your sister’s first claim, as a residuary legatee, she would be entitled to an equal share of the land, which is not specifically identified in the will along with you.
Your sister’s second claim seeking a share of the properties identified in the will, will depend on the terms of the will. Since your late mother passed away before your father, her legacy is said to have ‘lapsed’. A residuary beneficiary can claim legacies that lapse when the intended legatee predeceases the testator, unless an alternative legatee is named in the will to receive the legacy.
This principle also applies when two or more legatees are given distinct shares in respect of the same property in a will and one of the legatees pre-deceases the testator such that their share lapses.
It does not appear from your query that your late father named an alterative legatee for your mother’s share in his will. Therefore, your sister should be able to claim an equal share with you of your late mother’s share in the properties identified in the will.
The exception to this principle is if your father’s will is drafted in a manner such that the specified properties are jointly bequeathed to you and your mother (without distinct or specific shares). In this case, since your mother pre-deceased your father, you will be entitled to the whole of the properties as the survivor, and your sister will not have a share.
It is recommended that you or the executor under the will consult a legal advisor to review the contents of the will and provide formal legal advice on the above.
Shaishavi Kadakia is a partner, and Sachi Shah is a senior associate at Cyril Amarchand Mangaldas
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