8 July 2021
The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in an article in the following Q&A which was published by the Mint Newspaper on 07th July, 2021 and the online edition of the same can be found here.
My father and mother passed away after they came down with covid. My father had made a registered Will in 2015. According to that document, my nephew has been named the claimant of all his liquid assets. However, after 2015, my father declared me as his nominee in almost all his bank accounts. Under these circumstances, who is the rightful claimant of my father’s liquid assets, my nephew or myself?
—Name withheld on request
Based on the details you have provided in the question, and assuming that you and your family are Hindu by faith, the provisions of the Indian Succession Act, 1925, should apply in this matter.
Your late father had identified your nephew as the sole legatee of his liquid assets. In similar situations, Indian courts have on multiple occasions clearly held that the rights of a legal heir supersede the rights of a nominee. A nominee (pursuant to a nomination by the deceased during their lifetime) acts only as a trustee on behalf of the rightful legal heirs, holding any property until the matter of succession or inheritance has been decided under law.
Your question does not mention if any probate (the judicial process whereby a Will is proved in a court of law and accepted as a valid public document that is the true last testament of the deceased) was required, but we assume that the necessary procedures were completed to bring the Will into effect.
While the banks may decide to release the funds held in the various bank accounts to you (in your capacity as nominee of such bank accounts), you are merely entitled to hold such funds on behalf of the legal heir identified under the Will (i.e. your nephew).
Depending on the location and applicable legal regime for your late father’s estate, a grant of probate or a letter of administration may be required.
Subject to this being done for your father’s Will and estate, the rightful “claimant” to your father’s liquid assets would be your nephew.
For further information, please contact:
Rishabh Shroff, Partner, Cyril Amarchand Mangaldas
rishabh.shroff@cyrilshroff.com
