A nominee is considered as a trustee of the asset for which he has been nominated (Photo: iStock)
A nominee is considered as a trustee of the asset for which he has been nominated (Photo: iStock)

In case of any conflict after testator’s death, Will takes precedence over any nomination

  • Where as a validly executed Will is generally the document considered to contain the intention and the wishes of the deceased testator
  • Both your son, as a son of a pre-deceased son, and her 2nd husband would be entitled to a share in the new property under the provisions of the Hindu Succession Act

I am 26 years old and I want to allocate my assets to my two sons in equal proportion when they turn 27 with the following conditions: If anything happens to one of them before turning 27, his share should go to the other living son. If both die before 27 years, then the money should go to an NGO working for girl children. There is nomination facility in certain funds like savings account, insurance and pension funds. Can the conditions be applied to these investments too?

—Kanika Sharma

Your Will can provide for your wishes for asset distribution post your demise. Further, you can provide for the nomination facility for your savings account, insurance and pension funds, among others. Note that a nominee is just an interim arrangement so that the assets are kept in the safe custody till the time the entire asset distribution of a deceased takes place. Providing for a nomination creases out a lot of difficulty at a future date. A nominee is considered as a trustee of the asset for which he has been nominated. A validly executed Will is generally the document considered to contain the intention and the wishes of the deceased testator and in the event of any conflict, the Will takes precedence over a nomination. A nomination form can’t provide for the conditions regarding the transfer of assets to an NGO in the event of demise of both the sons prior to attaining the age of 27. In your case, you should execute your Will, capturing your wishes. You may also avail the nomination facility for the accounts, and insurance and pension funds, wherever it is permitted.

My mother-in-law got divorced at a young age. At that time my husband was a child. Thereafter she got married again. After a couple of years of my marriage, I lost my husband in an accident. A couple of years later, my mother-in-law also died. Now, during the period of her second marriage and when my husband was still alive, she purchased a new property. Now that both my husband and my mother-in-law are no longer alive, can my son claim his right on the property acquired by his grandmother while she was in her second marriage? Also, can my son claim right on the property of his grandfather, who is the biological father of my husband?

—Name withheld on request

We are assuming that the Hindu personal laws are applicable to you and that your husband was the only child of his father and mother. We further assume that during the second marriage of your mother-in-law, the husband and your mother-in law did not have any children out of their marriage and thus your husband did not have any step siblings. We believe that your mother-in law has died intestate i.e., without leaving a Will and your son and her second husband are the heirs/ legal representative who have survived her. Both your son, as a son of a pre-deceased son, and her second husband would be entitled to a share in the new property under the provisions of the Hindu Succession Act. However, in the event your mother-in-law has left a Will, all her self-acquired property would be bequeathed in accordance with her Will.

The grandfather’s estate, which he left behind post his demise, would be shared equally between you, as a widow of the pre-deceased son, and your son, being the son of a pre-deceased son, being Class I heirs under the provisions of Hindu Succession Act. For this, we have assumed that your husband’s father did not remarry.

Aradhana Bhansali is partner, Rajani Associates. Queries at mintmoney@livemint.com

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