Photo: iStock
Photo: iStock

A family agreement needs to be signed only by those giving up their inheritance

The family agreement would have to be executed by the concerned family members who are releasing their share as also by the members in whose favour the share is being released

We are facing a dispute over my grandfather’s Will. I just want to know which document is given priority, a Will or a family agreement [and does it have to be signed by all the family members of by some of them only]?

—Lovekush Gothwal

To answer this query more accurately, I would require more details so as to understand the position and facts better. However, based on the limited facts provided by you, I am attempting to provide a response. In the event that your grandfather’s Will was executed after a valid and binding family agreement (in the nature of a family arrangement or settlement) was entered into between the family members and your grandfather had relinquished his rights to certain properties and assets in the family agreement, then to the extent that such assets (in which he had already relinquished his rights) are sought to be disposed of by him under the Will, the bequest of such assets would be void (though the remaining part of his Will and the disposition of his other assets under the Will would be valid).

Also, even if subsequent to executing the Will your grandfather entered into a valid and binding family agreement, where by your grandfather relinquished his rights to certain properties and assets, then even though the Will was executed prior in point of time, to the extent that such assets (in which he has relinquished his rights under the family agreement) are sought to be disposed of by him under the Will, the bequest of such assets under the Will would be void (though the remaining part of his Will and the disposition of his other assets under the Will would be valid), since the Will takes effect only on the death of the testator and therefore assets disposed of or in respect of which he has relinquished his rights, prior to his death, cannot be bequeathed under the Will (as your grandfather ceased to have title to such assets on the date of his death when the Will became operative). However, if a family agreement has been duly executed by the surviving family members after your grandfather’s death and therefore the assets have already vested in the heirs of your grandfather (pursuant to the Will), and the heirs under the Will validly relinquish or release their rights to such assets which they have inherited from your grandfather under the Will pursuant to the family agreement, the family agreement should be given effect to.

The family agreement would have to be executed by the concerned family members who are releasing/relinquishing their share as also by the family members in whose favour the share is being released pursuant to the said family agreement.

I want to start a fixed deposit in my son’s name. But he is a minor (2 years old). Can someone apart from my husband be the nominee? My parents are deceased and I do not wish my in-laws to be the nominees. Can my first cousins or friends be named?

—Deepali Patekar

At the outset, I would like to clarify that since your son is only 2 years old, the fixed deposit may be opened only through his natural or legally appointed guardian which means that the fixed deposit can be opened on behalf of your son by either you or your husband on behalf of and as the guardian of your son. You may please check the procedure for starting the fixed deposit account in your son’s name with the bank.

It would be possible to name any person as the nominee of the account and it need not be a relative. However, depending upon the terms of the bank, since the account will be opened by the guardian for the benefit of your son, the nomination would usually take effect on the death of the person in whose name the account is opened (which in this case would be the legal guardian).

Please note, irrespective of who your choice as a nominee is, the nominee will hold the asset for the benefit of your son and would be entitled to claim the asset for his/her benefit. I would also recommend that you draw up and execute a Will in the manner set out in the Indian Succession Act, 1925 (executed by you in the presence of two witnesses competent to contract and your attesting witnesses must attest the Will as your attesting witnesses, in your presence and in the presence of each other, after they have seen you executing the Will). In your Will you should state that the monies in the fixed deposit belong to and vest exclusively in your son and the nominee will hold it for the benefit of your son.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.

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