Transfer of property to unborn child

According to section 13 of the Act, a transfer of property to unborn child is void, unless all the interest is given to such unborn person. E.g. if a transfer is made to A, who is unborn absolutely, it is valid only if life interest is given to A and then to B, such transfer is void. As by virtue of Section 5 of the Act, a transfer cannot be made to a non-living person. The only way to transfer property to an unborn person is to create a trust in his name. Such unborn person, as stated above, should get absolute interest in the property and, not merely vested interest.



For instance, A transfers the property of which he is the owner to B, in trust for A and his intended wife, successively, for their lives, and after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A”s second son. The interest, so created for the benefit of the eldest son, does not take effect because it does not extend to the whole of the remaining interest in the property.

Therefore, it is necessary, in such cases, that the estate must vest in some person between the date of the transfer and the coming in to existence of the unborn person.

”’A” made a gift of her property to ”’B”’- her nephew”s daughter- for life, and then to B’s male descendents, if she should have any. But, if she should have no male descendents then, it would pass to B’s daughter without power of alienation; but if there were no descendents of B, male or female, then to her nephew. B died without issue. The gift to unborn daughters, being of limited interest and subject to the prior interest, created in favor of B, was invalid under section 13 and the gift to the nephew therefore failed.

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