Bequests to unborn children are permitted subject to conditions

If a Will is valid by law and the person who made it has not left any bequests in favour of a grandchild, then the grandchild would not be entitled to claim under the Will


My son was born in 2013. His grandfather had made a Will in 2011, in which he stated that if any child born in the family claims a right on any of his property, then their right would be considered void and even his son (my husband) would be entitled only after my mother-in-law’s death. Can they bar my son’s right?

—Siya Rana

We assume that your father-in-law has executed a valid Will and the property bequeathed under the Will is a self-acquired property that does not form a part of a Hindu Undivided Family (HUF) property. We have also assumed that your father-in-law passed away before your son was born.

From your query it is not certain to whom your father-in-law has bequeathed his properties but you have referred to your mother-in-law’s rights in the property up to her death and your husband’s entitlement after her death. If, as per the Will, your father-in-law has created a life interest in his property in favour of your mother-in-law, it would usually imply that your mother-in-law would have a restricted right in the property, i.e., she would be able to use the property during her lifetime, but would not be able to transfer the property (by sale or otherwise) or bequeath the property to any other person.

Upon her demise, the property would devolve upon your husband or such other person in whose favour the absolute bequest has been made under the Will and which is to take effect upon the termination of the life interest which had been created in favour of your mother-in-law. If your father-in-law has included unborn grandchildren as legatees (a legatee is a person in whose favour property or any other interest is bequeathed under a Will) under his Will (in addition to your mother-in-law who has a life interest and your husband thereafter) and by clear language sought to include as legatees, such grandchildren who are born after the date of his death, your son would be entitled to claim under the Will, subject to the prior life interest of your mother-in-law (and the interest, if any, bequeathed to your husband under the Will).

Bequests to unborn children are permitted subject to certain conditions. However, it is unclear from your query whether any bequest has been made in favour of your child under the Will of your father-in-law. If your father-in law’s Will is valid by law and he has not made any bequests in favour of your son under his Will, then your son would not be entitled to claim under the Will.

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