Where a property is bequeathed to a person with a bequest in the alternative to another person or to a class of persons, then, if a contrary intention does not appear by the Will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes effect;
but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy.
Illustrations:
(i) A bequest is made to A or to B. A survives the testator. B takes nothing.
(ii) A bequest is made to A or to B. A dies after the date of the Will, and before the testator. The legacy goes to B.
(iii) A bequest is made to A or to B. A is dead at the date of the Will. The legacy goes to B.
(iv) Property is bequeathed to A or his heirs. A survives the testator. A takes the property absolutely.
(v) Properly is bequeathed to A or his nearest of kin. A dies in the lifetime of the testator. Upon the death of the testator, the bequest to A's nearest of kin takes effect.
(vi) Properly is bequeathed to A for life, and after this death to B or his heirs. A and B survive the testator. B dies in A's lifetime. Upon A's death the bequest to the heirs of B takes effect.
(vii) Property is bequeathed to A for life, and after his death to B or his heirs. B dies in the testator's lifetime. A survives the testator. Upon A's death the bequest to the heirs of B takes effect.
Legal Commentary & Landmark Judgments: Section 96
Section 96 regulates alternative bequests, providing that where property is bequeathed to a person 'or' another, the second takes by substitution only if the first dies in the testator's lifetime.
Instead, it construes the phrase as an original gift to A, with a substitutional gift to B in the event of A's death before the testator.
If A survives the testator, A takes the bequest absolutely, and B receives nothing. Only if A predeceases the testator does the substitutional gift take effect in favor of B, preventing the legacy from lapsing under Section 105.
Section 96 provides vital statutory salvage for wills drafted as 'to my son A or his children'. If the son is alive at the testator's death, the son takes the entire property; the children take nothing. The children only inherit if the son predeceases the testator.