Nomination & WILL : What Law really says and what you think. : Adv. Rohit Erande. ©

Nomination & WILL, two important, but often misconstrued and misunderstood subjects.

Adv. Rohit Erande. © 

Nomination : It's not the 3rd rule of Succession.. Nominee is just a Trustee.

The Hon'ble Apex court  in plethora of  cases has made the Law clear. E.g. In the case of Shreya Vidyarthi V/s. Ashok Vidyarthi, AIR 2016 SC 139, has reiterated the legal position. However it's really unfortunate that people get carried away by whatsapp interpretation and this judgment is not an exception to that.   Let's try to learn the gist of the Judgement .

a) Nomination is just a trusteeship & it's not a 3rd mode of Succession.

b) The Nominee does not become the owner of the property by virtue of Nomination. It does not take away rights of other legal heirs. May it be Society Share certificate or Bank Accounts or Shares.

C) In the case of  Indrani Wahi v/s. Registrar Co. Op. Society, 2016(6) SCC 440 Hon. Supreme Court has made the Job of Society more easy. After the death of the member, Society has to transfer the share certificate in the name of Nominee. The other Legal heirs if having any objection have right to approach competent Court and to get their rights determined. Society has no right to decide such rights.

d) Recently, the Hon. Bombay High Court also in the case of Jayanand Jayant Salgaonkar V/s. Jayashree Jayant Salgaonkar has held that a nominee of shares and securities of a company merely holds the securities in trust, and as a fiduciary on behalf of any claimants under the laws of succession.

e) It relied upon the celebrated judgment of Hon. Apex Court in the case of Sharbati Devi V/s. Smt. Usha Devi, 1984 AIR SC 346, wherein while dealing with the question of entitlement of Insurance Claim amount, it has been observed that, " The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them."

WILL :  “Death is certain but it's time is most uncertain” and therefore WILL is required to be made.

a) Any adult and sane person can make his/her WILL in respect of SELF ACQUIRED or SEPARATE property (All Movable like Shares, Ornaments, Bank FDs etc & all Immovable properties like Flat, Shop, Plot etc). As per Sec.30 of Hindu Succession act, a Will can be made in respect of his/her undivided share in the property.

b) Except Muslims, all other persons have to make the WILL in writing. There is no prescribed format though, it’s advisable that language of WILL should be simple and clear and complications should be avoided.

c) A Will does not require any Stamp nor it is compulsorily required to be registered. Will may also be registered after the death of the Testator. There are special provisions in Registration Act for registration of the Will. However, a subsequent unregistered Will, shall prevail.   Only  important thing is that a Will should be signed by two witnesses (who are not beneficiaries of the WILL) and the Testator should sign in presence of two witnesses. Witness  are Not supposed to know what's written in the Will.

Though by law A Doctor Certificate is not required, still practically it is in the interest of everyone to have such certificate regarding mental & physical health of the Testator.

d) Will starts speaking, when the maker of the Will stops speaking. So the beneficiaries are entitled to bequest only after death of the Testator. The WILL once made can be changed / replaced by another WILL, and it’s the LAST WILL THAT PREVAILS.

e) One may appoint one or more Executors for giving Effect to the WILL. In absence of Executor, beneficiaries may require to obtain Letters of Administration from Competent Court. 

f) PROBATE of the WILL is required to obtained only in Metropolitan Cities like Mumbai, Chennai & Kolkatta. E.g. If Will is made and executed in Pune and properties are also in Pune, then no Probate is required. Many times Banks, Financial Institutions compel customers to get Probate in respective cases, for their safety. But such compulsion is against the spirit of Law. Thus the Banks may ask for Indemnity Bonds for their safety.

g) In our society, WILL or even its discussion is considered as if a Taboo. Come on, it is in your interest that after you, there will be no or lesser conflicts regarding your property ones you make a Will.

Thus don't get carried away by whatsapp messages. Consult the lawyer and take proper advice. Do not blindly rely upon internet information. That may be injurious to your " Wealth".

You may please see the you-tube videos on these subjects.. 

https://youtu.be/PKvPAXMRg9c

    and

https://youtu.be/Trxb8IuGjuw

Thanks & Regards

Adv. Rohit Erande.

Pune.©