(1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the Will that the testator intended that it should go to some other person.
(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.
Illustrations:
(i) The testator bequeaths to B "500 rupees which B owes me".B dies before the testator; the legacy lapses.
(ii) A bequest is made to A and his children. A dies before the testator, or happens to be dead when the will is made. The legacy to A and his children lapses.
(iii) A legacy is given to A, and, in case of his dying before the testator, to B. A dies before the testator. The legacy goes to B.
(iv) A sum of money is bequeathed to A for life, and after his death to B. A dies in the lifetime of the testator; B survives the testator. The bequest to B takes effect.
(v) A sum of money is bequeathed to A on his completing his eighteenth year, and in case he should die before he completes his eighteenth year, to B. A completes his eighteenth year, and dies in the lifetime of the testator. The legacy to A lapses, and the bequest to ii does not take effect.
(vi) The testator and the legatee perished in the same ship-wreck. There is no evidence to show which died first. The legacy lapses.
Legal Commentary & Landmark Judgments: Section 105
Section 105 codifies the cardinal doctrine of lapse, enacting that if a legatee does not survive the testator, the legacy lapses and falls into the residue, unless a contrary intention appears.
Under sub-section (1), if the legatee does not survive the testator, the legacy cannot take effect, but lapses and becomes void.
Under sub-section (2), the lapsed legacy falls into the general residue of the estate under Section 103. If there is no valid residuary clause, the lapsed asset devolves upon the statutory heirs as an intestacy under Section 30. The section contains a vital exception: a legacy does not lapse if the will contains an express substitutional gift directing who shall take if the primary legatee predeceases the testator.
The doctrine of lapse under Section 105 is the most frequent cause of unintended intestacy. To defeat Section 105, competent estate planners always insert express substitutional clauses (e.g., 'and if my son predeceases me, to his surviving children'). Litigators challenging a will should scrutinize whether named legatees predeceased the testator; if so, their bequests lapse completely under Section 105.