Nomination and will on residential property
Jayasheela
(Querist) 06 June 2013
This query is : Resolved
1.The property in question was purchased by Father from some other Party. The Sale Agreement of residential property in MUMBAI is in the Joint name of Father and Mother. After the death of Mother, Father gave the fresh Nomination Form (with his single signature) to the Society naming Daughter as 1st Nominee (50%share) and Son as 2nd Nominee (50%share) and Society registers the same in their records without obtaining NOC from Son or Daughter.
2. After some time Father makes a WILL with same 50% Share each to both.After the death of Father ,Son disputes and instruct the Society in writing not to Transfer the Residential Flat in the name of both but claims 100% Share saying that Father is not the Sole Owner of the Property and hence no Legal Right to give Nomination and make Will on the Whole Property.To claim his illegal 100% Share Son intentionally reported as shifted from his Permanent Residence in the same nearby area and presently residing in the Disputed flat.Executor named in the Genuine Registered Will refused to act and the witnesses to the Will are influenced by the Son.
3. Whether the Nomination made is valid and what are the Legal implications about Transfer and of Share/Property (a) if no Will is made subsequently (b) if Will is made subsequently with same 50% Share each ?.
4. What are the proper Legal Steps to be taken in this regard to settle the matter at the earliest?.
Kishor Mehta
(Expert) 06 June 2013
Madam,
A nominee is only a trustee. The father could nominate for his share only.
1] In this case on the death of the mother there are three beneficiaries for her 1/2 share of the flat, Father, Son and Daughter, i.e each is eligible for 1/3rd of her 1/2 share, i.e each gets 1/6 + 1/6 + 1/6 of the whole share.
2] On the death of the Father, according to his Will the son and daughter will get equal shares from his share, i.e. equal shares from (1/2 father's own share + 1/6 father inherited from mother) of the father's share.,i.e the son and daughter each gets (1/4 + 1/12)from father's share + 1/6 they have inherited from mother's share, thus totally the son and daughter EACH shall get (1/6 + 1/4 + 1/12 = 1/2 of whole) share of the flat.
3] Actually the son and daughter shall inherit equal shares in the flat.
Good Luck
Kishor Mehta
Jayasheela
(Querist) 08 June 2013
Thank you Sir.Will you please go through Point nos.2,3 and 4 and kindly clarify/guide me in respect of remaining points in detail ?.
Kishor Mehta
(Expert) 09 June 2013
Madam,
Your query:
["2. After some time Father makes a WILL with same 50% Share each to both.After the death of Father ,Son disputes and instruct the Society in writing not to Transfer the Residential Flat in the name of both but claims 100% Share saying that Father is not the Sole Owner of the Property and hence no Legal Right to give Nomination and make Will on the Whole Property.To claim his illegal 100% Share Son intentionally reported as shifted from his Permanent Residence in the same nearby area and presently residing in the Disputed flat.Executor named in the Genuine Registered Will refused to act and the witnesses to the Will are influenced by the Son."]
The father has every right to nominate, as he pleases, for his share in the flat, which is 1/2 as per the deed of the flat + 1/6 of his share from the mothers side.
The Will of a property in Mumbai has to be probated by Court, and the Executor is duty bound to divide the property as set out in the Will. The matter has better to be taken to the Court at the earliest to safeguard the daughter's rights.
[3. Whether the Nomination made is valid and what are the Legal implications about Transfer and of Share/Property (a) if no Will is made subsequently (b) if Will is made subsequently with same 50% Share each ?.]
The nomination made by a person owning a part of a flat is valid for his share of the flat. (a)If there is no Will, letter of Administration is to be obtained from the Court by the legal heirs. (b) in case of a Will made by the Father the share in the flat shall be divided equally as already explained in details previously.
[4. What are the proper Legal Steps to be taken in this regard to settle the matter at the earliest?."]
The daughter should approach the Court at the earliest to safeguard her rights.
Good Luck,
Kishor Mehta
ajay sethi
(Expert) 09 June 2013
t is a repeated query which has already been replied to earlier . instead of raising repeated queries please contact a local lawyer
Jayasheela
(Querist) 10 June 2013
Thanks,Kishor Mehtaji for your excellent reply/advice.
