Will vs Nomination for Bangalore Flats: Legal Guide

What Prevails When a Bangalore Flat Owner Dies and There Are Competing Claims Between a Will and a Bank or Association Nomination?

By the Property Law Team | Legal Brigade | Bar Council of Karnataka

When a Bangalore flat owner dies leaving both a registered will that bequeaths the flat to one person and a nomination registered with the apartment association or the housing society that names a different person as the nominee – or a nomination made with the bank for the flat-linked home loan account – the legal position in India is clear: the will prevails over the nomination for the purposes of determining who ultimately owns the flat, while the nomination only gives the nominee the limited authority to receive and deal with the asset on behalf of the true legal heirs pending the estate’s formal settlement.

What Is a Nomination and What Authority Does It Give the Nominee?

A nomination is a direction by an account or membership holder to a financial institution or an association to deal with the account or membership with a specified person – the nominee – on the holder’s death. The nominee is not the beneficial owner of the asset – they are merely the person who receives the asset as a trustee or conduit on behalf of the true legal heirs or the will’s beneficiaries. The Supreme Court of India has consistently held that nominations do not create ownership rights – they only provide a safe harbour for the institution to deal with the nominated person without liability.

For a Bangalore flat, nominations exist in two contexts: the apartment association’s membership nomination (the person the association recognises as the membership holder’s successor for receiving notices, participating in the association and dealing with the common area entitlements); and the home loan bank’s nomination (the person the bank pays the loan insurance proceeds to if the borrower dies). Neither nomination transfers the flat’s ownership – the flat’s ownership passes under the will or intestate succession law.

What Is the Correct Legal Position When the Nominee and the Will’s Beneficiary Are Different?

The Supreme Court’s ruling in Sarbati Devi v. Usha Devi (1984) and the subsequent reaffirmation in multiple cases established that a nominee under a nomination clause is not the beneficial owner of the asset – they hold the asset in trust for the legal heirs or the will’s beneficiaries. The nominee cannot claim ownership against the will’s beneficiary. A nominee who refuses to hand over the asset to the will’s beneficiary is in breach of their duty as a trustee.

In practice, this means: if a Bangalore flat owner leaves a will giving the flat to Child A but has an association nomination naming Child B, the flat belongs to Child A under the will. Child B must cooperate in transferring the association membership to Child A. If Child B refuses, Child A can file a civil suit for a declaration of their ownership and a mandatory injunction directing Child B to cooperate with the membership transfer. Child B has no ownership claim against the will regardless of the nomination.

What Steps Should the Will’s Beneficiary Take After the Flat Owner’s Death?

Step 1: Obtain a certified copy of the registered will and the death certificate.

Step 2: Send a formal legal notice to the association and to the nominee (if different from the will’s beneficiary) stating the will’s bequest and requesting the association membership be transferred to the will’s beneficiary.

Step 3: Apply for mutation of the flat’s property tax records at BBMP in the will’s beneficiary’s name – using the death certificate and the will as supporting documents.

Step 4: File a civil suit if the nominee refuses to cooperate – seeking a declaration of ownership and a mandatory injunction directing the membership and revenue record transfer.

Step 5: Have a property lawyer confirm the will’s validity (proper execution and attestation) and the nomination’s limited legal effect before filing the mutation application.

Q1. Does a nomination give the nominee ownership of the flat?

No – a nomination does not give the nominee ownership of the flat. The Supreme Court has held repeatedly that nominees under nomination clauses are trustees for the legal heirs or the will’s beneficiaries. The nominee receives the right to deal with the asset initially, but must ultimately hand it over to whoever is entitled under the will or the succession law.

Q2. What is the purpose of an apartment association nomination if it does not give ownership?

The association nomination serves a practical administrative purpose – it gives the association a named person to contact and deal with for the flat’s membership immediately after the owner’s death, before the succession is formally settled. This avoids the association being in limbo when there is no known person to communicate with. The nominee facilitates the transition without being the ultimate owner.

Q3. Can the nominee of a flat sell it without the will’s beneficiary’s consent?

No – the nominee cannot sell the flat without the will’s beneficiary’s consent because the nominee does not own the flat. Any sale by the nominee without the will’s beneficiary’s knowledge and consent is void against the beneficiary. A buyer who purchases from a nominee without confirming the will’s beneficiary’s consent takes a title that the beneficiary can challenge.

Q4. What if there is no will and no nomination – who gets the flat?

If there is no will and no nomination (or the nomination is to the estate generally), the flat passes to the legal heirs under the applicable succession law – the Hindu Succession Act for Hindus, the Indian Succession Act for Christians and Parsees. The legal heirs collectively inherit the flat and must partition it or sell it with all heirs’ consent.

Q5. Can a nomination override intestate succession in the absence of a will?

No – a nomination does not override intestate succession. Even without a will, the legal heirs under the applicable personal law are entitled to the asset. The nominee holds the asset in trust for the legal heirs under intestate succession – not in their own right.

Q6. Can the flat owner change the nomination at any time?

Yes – a nomination can be changed or revoked by the asset holder at any time during their lifetime. A later nomination supersedes an earlier nomination for the same asset. A will can also be updated at any time before the testator’s death. If the will and the nomination are both updated, the most recent version of each governs their respective aspects.

Q7. What if the will is not registered – does it still prevail over the nomination?

A registered will is stronger evidence than an unregistered will – but an unregistered will is also legally valid for Hindu testators. An unregistered but properly executed and attested will (signed by the testator and attested by two witnesses) prevails over the nomination even without registration. Registration makes the will harder to challenge but is not mandatory for its legal validity.

Q8. Does the flat’s home loan insurance nomination affect ownership?

The home loan’s linked term insurance policy has a nomination for the insurance proceeds – the named person receives the insurance payout if the borrower dies. The insurance proceeds are used to pay off the home loan. The flat then belongs to the estate – to be distributed under the will or intestate succession. The insurance nominee’s claim is on the insurance proceeds, not on the flat itself.

Q9. What if the nominee predeceases the flat owner?

If the nominee predeceases the flat owner, the nomination lapses – there is no surviving nominee. The association deals with the estate’s legal representative after the flat owner’s death. The flat owner should update the nomination promptly if the previous nominee dies. An updated will naming a successor beneficiary provides better protection than relying on a nomination that may have lapsed.

Q10. How does Legal Brigade assist when a nomination and will conflict?

Legal Brigade confirms the will’s validity and the nomination’s limited legal effect, sends the formal notice to the association and the nominee, applies for the BBMP mutation in the will’s beneficiary’s name and files the civil suit if the nominee refuses to cooperate. Legal Brigade also advises on the will’s registered status and whether probate is advisable to strengthen the beneficiary’s claim.

The apartment association is dealing with a nominee but you are the named beneficiary under the flat owner’s registered will? Legal Brigade clarifies the legal position, notifies the association and the nominee and pursues the mutation in your name.

WhatsApp → wa.me/8497029999

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