• DMAT A/c Nominee got the shares- Does WILL supersede nominee

Hi- My brother changed the nominee in DMAT a/c 6 months before my dad passed away. My dad's Will is in my favor for shares in DMAT a/c . Bank transferred shares in DMAT a/c to my brother being nominee inspite of me raising objection and informing bank with the Will copy. 
My brother is enjoying shares as if he is owner and is doing trading etc and not willing to transfer shares in my name as per my dad's Will. He is claiming nominee is the Owner. 

Questions - 
1] How do to I recover shares from my brother who was nominee to the account ?
2) Is bank liable for transferring shares inspite of me producing Will copy to them clearly informing that transfer to nominee would be detrimental to my interest as legal heir ?
3) How much would it cost to take Probate ?
4) How long will it take to get Probate ?
5) What if my brother transfer shares in name of his children before probate is obtained? How do I recover from his Children ?

Thanks!
Asked 7 years ago in Civil Law

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7 Answers

Nominee is only trustee for legal heirs

2) if shares have been bequeathed to you by will apply for probate of will

3) issue legal notice to bank to transferring shares in name of nominee inspite of being forwarded copy of will

4) seek stay restraining brother from transferring the shares

5) also seek court orders to set aside transfer of shares

6) court fees for probate depend upon value of securities

7) legal fees vary depending upon lawyer engaged by you

8) probate takes around 6 months if there is no contest to the will

Ajay Sethi
Advocate, Mumbai
95221 Answers
7612 Consultations

5.0 on 5.0

1. If you have not taken probate of the will, it has no value more than a scrap paper. So. take probate of the will first. After that approach Consumer Forum against the Bank for passing on the shares to the nominee who is just trustee of the shares despite your submission of your father's will bequeathing the said shares in your favour. You should also file a recovery suit against your brother for recovery of he said shares.

2.The Bank should ave frozen the said transfer and asked you to take probate of the will for claiming ownership of those shares.

3. The maximum amount of stamp duty will be Rs.50 K and in otal it might cost you Rs.1.50 Lakhs to get the grant of probate including lawyer's fees.

4. It might take around 9 to 11 months.

5. You shall have to file recovery suit against your brother and also subsequent holders of the said shares and also shall have to have a stay order directing the concerned companies not to record any transactions for those shares.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1) you should apply for probate within period of 3 years of demise of the testator .

2) if application is made after 3 years reasons for delay in filing probate has to be explained

3) you have to pay stamp duty depending upon value of the shares .

4) maximum stamp duty is Rs 3 lakhs

5) you can execute POA in favour of family member to file suit for setting aside transfer of shares and for injunction

Ajay Sethi
Advocate, Mumbai
95221 Answers
7612 Consultations

5.0 on 5.0

1. You should have filed a suit for permanent injunction to restrain the bank from transferring the shares to your brother. Since there was a conflict in the will and nomination with respect to the devolution of shares the bank was always going to transfer it to the nominee. You missed the bus by not filing a suit for permanent injunction.

2. If the will relates to properties in cities where probate is mandatory then file probate petition, failing which a will has scrap value. Also file a suit for injunction against your brother to restrain him from alienating the shares which he has been able to realise.

3. The limitation to file for probate is 3 years.

4. The court fee on ad-valorem basis will have to be paid on the probate petition.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1. There is no time limit prescribed for that but inordinate delay may be challenged by the opponents and also might be questioned by the court.

2. Stay order is an order to be passed by the Court staying all further operation and for obtaining stay order you won't require any stamp duty to be paid. You shall have to file a recovery suit first and based on that file the said injunction petition praying for a stay order till your recovery suit is not disposed of.

3. You can execute a POA in favour of anybody in India and notarise the same before he appropriate officer of your local Indian Consulate and send the same to your POA holder in India who can represent you while pursuing your said case in India.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. If the nomination was made subsequent to the execution of 'Will', then the nomination will stand valid and not the will.

However please be aware that the nominee has the rights only to receive and distribute the movable properties equally among the legal heirs/successors in interest to the deceased owner of the property.

You can initiate legal recovery action on the basis of successor in interest towards your legitimate share in the properties left behind your father

2. The bank will not be liable to accept your request or notice about the existing will or any other thing while a legally valid nomination is subsisting.

3. The court fee is a local subject, you may enquire about it in the local court

4. Time taken for disposal cannot be predicted.

5. You may file recovery suit against all those who have taken benefits out of this property.

T Kalaiselvan
Advocate, Vellore
85422 Answers
2239 Consultations

5.0 on 5.0

1. The earliest the better, it should not be slept over so that you will not be able to take a defence on it.

2. The normal court fee alone is payable for obtaining stay order, the payment of stamp duty shall arise at the time executing the order passed in the probate petition.

3. You can manage the issues from remote through your power agent, but be aware that you have to to have a regular follow up with your lawyer and power agent.

T Kalaiselvan
Advocate, Vellore
85422 Answers
2239 Consultations

5.0 on 5.0

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