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Can Property Be Transferred To An Unborn Child?

Can Property Be Transferred To An Unborn Child?

Can Property Be Transferred To An Unborn Child?
(Dreamstime/Leerodney Avison)

There have been many conflicts and cases regarding property rights of an unborn child if a will mentioned the transfer of property to such a child while the owner passes away before the birth of such a child.

Here is a brief on property rights of an unborn child in the eyes of law: 

Rights of Unborn Child Under Property Act

While Section 5 of the Transfer of Property Act says that a property can only to be transferred to a living person, Sections 13, 14 and 18 of the Act deal with the law to transfer property for the benefit of the unborn child. It says to transfer property to an unborn child, a prior "interest" has to be created. This means a trustee has to be appointed for the benefit of the yet-to-be-born child. This "interest" must contain the whole of the remaining interest in the property of the person who desires to transfer the property. Otherwise, the transfer will not take effect.

Section 13 says that there cannot be a direct transfer to a person who is not in existence on the date of the transfer. It is for this reason that the Section uses the expression "for the benefit of" and not "transfer to an unborn person".

It is to be noted that a child in mother's womb is considered to be in existence according to the law.

Form a trust:  The property can be transferred to an unborn child but through a trust, not directly. If a trust is not formed, the property must be transferred in favor of a living person and then to the minor.

  • The unborn person must come into “existence” before the death of the last life estate holder. With existence, it means to be in a mother's womb and not the actual birth. 
  • For a gift deed made in favour of an unborn grandchild which is not in respect of the whole interest in the property, the deed can be held as a valid document as an ownership document.

    Right of Unborn Child Under Hindu Succession Act

    Section 20 of the Hindu Succession Act, 1956, deals with the rights of an unborn child that is in the womb of the mother. The property rights of an unborn child are governed by the fact that if the child who was in the womb at the time of the death of the person who desires to transfer the property and who is subsequently born alive shall have the same right to inherit as if he or she had been born before the death of the property owner, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.

    According to Section 20, an unborn child who has come into existence will inherit only if—

    (i) The child was conceived at the time of death of the property owner, and

    (ii) The child is born alive

    The child will inherit in the same manner as if he were born before the death of the property owner if the above conditions are met. Any child, male or female, who is in mother's womb at the time of the death of the property owner is considered to come into existence in the eyes of law.

    Right of Unborn Child Under Muslim Law

    There are no rights to the unborn child under the Muslim Personal Law and a gift to an unborn person is void except in case of Wakf.

Last Updated: Wed Sep 20 2017

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