What are the powers of a nominee when will is present?
Meet Sangvikar
(Querist) 30 August 2011
This query is : Resolved
Background:
My father owned a flat on his name. The nominee for this flat was my brother. My father died 10 years back. 1.5 years back my mother also expired. She left a will in which she has divided all her assets including land, flats, gold and fixed deposits equally between me and my brother- we are her only children. In this will she has specifically mentioned the above named flat.
My questions are-
1)Is it possible for my brother to sell the flat without my consent or signature?
2)What precautions I should take to avoid this?
Devajyoti Barman
(Expert) 30 August 2011
1. The nominee is a mere trustee duty bound to divide the properties among the legal heirs of the deceased.
Here you and your brother are equal share holder in the one half share of your mother as far as the said flat is concerned.
So the nominee has no right to sell the flat.
2. File a suit for partition and for injunction.
Ravikant Soni
(Expert) 30 August 2011
I do agree with barman sir.
n.k.sarin
(Expert) 30 August 2011
It is not clear from your querry that how and why your mother made a will.you have mention in your querry that your father owened a flat.After the death of your father all the legal heirs become equally joint owner of the property whether movable or immovable left by your father.As far as nomination is concerned, it cannot creat any right in the property or bank balance of your father. now about the will of your mother, it is valid only to the extend of the property which is absolutely belong to her.
Advocate Bhartesh goyal
(Expert) 31 August 2011
Yes Mr n.k.sarin is absolutely right.yuor father owened the flat and was absolute owener of flat and after his death his all legal heir will be joint owener of property.your mother's will be valid only up to the her belongings.
R.Ramachandran
(Expert) 31 August 2011
I fully agree with the views of Mr. Sarin.
But now that the mother had also died and she had made a will that her belongings (including the share in the property) should be equally divided between her two sons, the whole thing will boil down to the fact that each of the sons will ultimately have half share.
HAving said this, one brother alone cannot sell the property on the basis that he is the nominee.
The proper course for you would be to file a suit for partition and injunction as correctly suggested by Mr. Barman.
Meet Sangvikar
(Querist) 31 August 2011
Even though he is not the only legal heir, will he able to sell it to 3rd party without my signature(as he is the nominee)?
I do not want to enter a lawsuit as it will presumably delay the division of property.
