While dis­cussing about the fi­nances of a live-in cou­ple, the woman thought she would in­herit the es­tate of her part­ner who was 25 years older than her. She was in for a rude shock when we men­tioned that un­less the same is men­tioned in writ­ing through a valid Will by her part­ner, she will not be en­ti­tled to any­thing (there goes the most en­tic­ing part of a James Bond thriller). The court has formed a pre­sump­tion of mar­riage on the ba­sis of Sec­tion 114 of the In­dian Ev­i­dence Act stat­ing that if a cou­ple is hav­ing a long-term co-habi­tat­ing re­la­tion­ship of 7-10 years, they are pre­sumed to be mar­ried. Fur­ther, this woman was preg­nant and car­ry­ing the child of her part­ner. What would hap­pen to the child on the death of the male part­ner (he was the wealthy one). Would the as­sets go to class 1 le­gal heir, who will be the child, and the mother will get noth­ing, by na­ture of the re­la­tion­ship? Mar­ried part­ners or civil part­ners in­herit un­der the rules of in­tes­tacy only if they are ac­tu­ally mar­ried or in a civil part­ner­ship at the time of death. So, if you are a live-in cou­ple stay­ing to­gether, di­vorced, or if your civil part­ner­ship has been le­gally ended, you can’t in­herit un­der the rules of in­tes­tacy. Let’s say she did not look happy when they left the of­fice.

When an el­derly client of ours died sud­denly due to an ill­ness, there were ques­tions from his chil­dren and their spouses on who gets what. While he had made a Will, it was not up­dated and there were many resid­ual as­sets that needed to be at­tended to for dis­tri­bu­tion as per his choice. We had to as­cer­tain the fol­low­ing: 1) Seg­re­gate as­sets as move­able and im­move­able; 2) Which coun­try is the dis­eased domi­ciled in at the time of dy­ing, since the dis­tri­bu­tion of the move­able prop­erty is as per the law of the coun­try in which the de­ceased is domi­ciled in.

Note that the Act does not ap­ply to Mus­lims. In this case, the Mus­lim law and the de­ci­sions of the Shariah court will ap­ply.

Of­ten, it is ad­vised to make the spouse the ex­ecu­tor of as­sets for the other spouse. We were dis­cussing the role of an ex­ecu­tor with one of our client’s wife, who had been brought up in a vil­lage, while her hus­band was a welle­d­u­cated soft­ware en­gi­neer. When we in­formed her that she was in charge of fil­ing a pe­ti­tion with the courts to ad­mit the Will, col­late the as­sets, meet banks, and cred­i­tors, pay valid claim and set­tle loans, pay off taxes and le­gal costs and dis­trib­ute the as­sets ac­cord­ing to her hus­band’s wish in case of his death, she re­fused up­front. We had to sug­gest to the hus­band (al­though she was the ben­e­fi­ciary) to make an­other ex­ecu­tor which was his sis­ter.

A hus­band and wife com­pleted their fi­nan­cial plan with us. Ac­cord­ing to all the up­dated in­for­ma­tion in the fi­nan­cial plan doc­u­ment, the wife was the nom­i­nee; how­ever, we were not aware there was a Will made by the hus­band, where he men­tioned the ben­e­fi­ciary of all as­sets to be his brother. Ac­cord­ing to law, a nom­i­nee is a trustee and not the owner of the as­sets. In other words, she is only a care­taker of your as­sets. The nom­i­nee will only hold your as­set as a trustee and will be le­gally bound to trans­fer it to the le­gal heirs. After a cou­ple of dis­cus­sions with the cou­ple, we sug­gested they make a Will. We came to know about the al­ready ex­ist­ing Will in which the wife was not the ben­e­fi­ciary. We in­formed the wife of this piece of in­for­ma­tion. So much for: “for bet­ter or worse till death do us apart!”

If ev­ery in­di­vid­ual fol­lows some ba­sic hy­giene steps like up­date as­set nom­i­na­tions, up­date KYC sta­tus across all fi­nan­cial and non-fi­nan­cial as­sets, en­sure that ben­e­fi­ciary in­for­ma­tion is up­dated, up­date the Will on a reg­u­lar ba­sis, know the lo­ca­tion of the Will, it would make cir­cum­stances much eas­ier.

The ben­e­fi­ciary would not need to face long court pro­ceed­ings and fi­nan­cial trauma in ad­di­tion to the emo­tional trauma upon their loved one’s demise.

Dil­shad Bil­limo­ria is di­rec­tor, Dilzer Con­sul­tants Pvt. Ltd, and a Sebi-reg­is­tered ad­vi­sor

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