In the absence of a Will, succession laws matter—not the nominations
In the absence of a Will, a person’s assets, whether movable or immovable, would devolve on his/her heirs in accordance with the personal law applicable
Our cousin passed away without a Will. He was unmarried, with no siblings. He had nominees for a demat account. We the nominees got the shares transferred to our demat account. Now one of his relatives, heir, is claiming that if she does not get some shares she will file a case. She is the daughter of my deceased cousin’s brother. Is her claim valid?
—Name withheld on request
In the absence of a Will, a person’s assets, whether movable (financial) or immovable, would devolve on his/her heirs in accordance with the personal law applicable to him/her. In India, the personal law of a person is determined by the religion of the person.
I understand that your cousin was unmarried and had no brother or sister. However, you have mentioned that the relative claiming a share in your cousins assets is the daughter of your deceased cousin’s brother (and therefore it appears that your deceased cousin had a brother who predeceased him leaving a daughter). I have also presumed that your deceased cousin’s parents and grand-parents have pre-deceased him. I have been given to understand that your deceased cousin was Parsi and accordingly the Indian Succession Act, 1925 (the “Act”) as applicable to Parsi intestate succession would apply to your cousin. According to Section 55 of the Indian Succession Act, the assets of a Parsi dying intestate where he leaves no lineal descendant (children and their further descendants) nor widow (nor a spouse of any lineal descendant), devolves upon his/her next of kin, in the order set forth in Part II of Schedule II of the Act. As per the second entry in part II of Schedule II of the Act, your cousin’s assets would devolve upon his brothers and sisters (other than half brothers and sisters) and the lineal descendants of such brothers and sisters (if they have predeceased him). Accordingly, in this case, if the claiming relative is the daughter of the brother of the deceased (who died without leaving a spouse, children, parents or siblings), then the daughter of the deceased brother appears to be the rightful heir. If there are no other nieces and nephews (children of the siblings of the deceased cousin), then the daughter of the brother of the deceased referred to by you would be the sole heir. I understand that your deceased cousin had made nominations in respect of his demat account.
However, nominations will not override the laws of succession (See Shakhti Yezdani Vs Jayan and Jayant Salgoankar 2017(1) Bom CR 319) and accordingly, if the person claiming falls in the above description, she would be entitled to a share of your deceased cousin’s estate.
Kindly suggest a format for Will. Do I need to get it registered? How many copies should be preserved? Is it necessary to add FD details if nomination is declared? How should I cover addition of FDs to ensure Will remains updated?
—Name withheld on request
There is no fixed format for a Will and it is not necessary that any technical/legal words be used while drafting it. However, the wording should clearly identify the testator (i.e. the person making the Will). You should state the full name of the testator and preferably, his/her age and address at the time of making the Will and that the testator is of sound mind and making the Will of his/her own free will. It should mention the assets being bequeathed and the beneficiaries in whose favour they are being bequeathed and in whom the remainder of the property—which is not specifically bequeathed to any named legatees—is to vest. The intentions of the testator in the disposition of his estate should be clear and unambiguous and should not be in contravention of any law. You may appoint one or more persons as ‘executors’ under your Will. The executor will take steps to give effect to your Will following your death and to obtain probate of the Will, where probate is required under applicable law.
You should state that you are revoking all previous Wills and testaments and preferably mention the specific date of the previous Will and codicils being revoked by the new Will. The executors are also usually directed by the testator under his/her Will, to pay all the debts of the testator from out of the estate of the testator and to give effect to the bequests of the testator thereafter.
You do not need to specifically mention each fixed deposit unless certain specific fixed deposits are being bequeathed to different legatees and they need to be identified for this purpose. It is important that you cover all assets in the Will through bequests of specific assets to specific persons even though you may have made specific nominations in that regard. This is because nomination do not confer an absolute right of ownership on a nominee (since a nominee merely holds the asset as a trustee and is legally bound to transfer it to the legal heirs), the alignment of the nominations and the intended legatees only facilitate a smooth logistical execution of the estate. (See Sarabati Devi and Anr. vs. Smt. Usha Devi & Shakhti Yezdani Vs Jayan and Jayant Salgoankar 2017(1) Bom CR 319). You should state to whom the rest of your assets (which are not specifically covered in the Will) are to belong.
The Will should be executed in the presence of two witnesses competent to contract (other than a beneficiary under the Will or a spouse or persons claiming under the beneficiary) and such attesting witnesses must attest (sign) the Will as attesting witnesses, in the testator’s presence and in the presence of each other, after they have seen the testator execute the Will. It is recommended that you add the complete details of the witnesses (their full names and addresses) under their signature so that they can be easily identified by the executor for the purpose of the probate of the Will. Please note: registration of a Will is not compulsory, even if it comprises immovable property. However, in case you want to, you may register it with the applicable registrar or sub-registrar of assurances. Your original Will should be kept in a safe place (accessible to your executors) and your executors should be informed about this.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
Queries and views at firstname.lastname@example.org