Legal Consequences of Changing the Name of Heirs on the Insurance
Policy
Robinson, and Elvira Fitriyani Pakpahan
Magister of Notary, Prima Indonesia University, Jl. Sekip simpang Sikambing, Medan, Indonesia
Keywords: Insurance agreement, name change, and heirs.
Abstract: Insurance is an agreement between two parties, was from insurance company and the policy holder. Insurance
is an important part of everyday life, it is a part of contract law and also part of inheritance law because it has
a value of inheritance that can be inherited. The aim of this study is to analyse the impact of name changing
laws on heir on insurance. This type of research are laws normative research. The change of name is made in
order that policyholders have opportunity to change some of the wishes on the policies that are already owned
by insurance agreements. The regulation on changing the name of the heir according to the insurance law in
Indonesia is not regulated in detail. However, in Article 251 of the Commercial Code, it is very clear that
there is a need for notification to the parties related to the agreement made whenever there is a change to the
deed or agreement. So that the legal consequences of changing the name of the heir have a significant impact
so that it needs to be done with caution so as not to be mistaken. The need for legal protection against changes
in the name of heirs in the insurance policy so that the parties related to the policy do not change carelessly
so that it has an impact on other legal consequences.
1 INTRODUCTION
To achieve the goal of being a welfare state, the state
needs legal certainty and fairness for the protection of
every individual. It is good to feel the impacts of
development, as well as guarantees for education,
insurance for life, as well as security for proper
health. National development lays the foundations for
the struggle for national development in realizing
society to improve the economy and every field in
general (Badruzaman, 2019). In a state-owned
arrangement or by the insurance company itself.
Appropriate regulation creates confidence in the
certainty that arises at a later date after the agreement
is made. As well as insurance policies in insurance
insurance.
Insurance or coverage is something that is familiar
to the people of Indonesia, where most Indonesians
have entered into insurance agreements with
insurance companies, both state-owned and national
private-owned insurance companies. Then the level
of risk that occurs in every human activity will also
increase, both those that threaten themselves or their
property, so that humans try to overcome them. One
of the ways humans deal with risk is through
transferring risk to other parties, in this case through
insurance institutions. Insurance as a risk transfer and
sharing agency has positive benefits for the
community, companies and for the development of
the country (Badruzaman, 2019).
Insurance as a risk transfer agency. In normal
circumstances, usually a person or a business entity
must personally always bear all possible losses
caused by any event. Usually, the nature and amount
of the loss cannot be easily estimated in advance,
whether it will be fatal or not. Will it cause losses that
you can handle yourself or not. In insurance there is
an insurance agreement, while the Civil Code
(hereinafter referred to as the Civil Code) states
specifically that there is an "agreement" which is a
condition that must be met for the validity of the
agreement (Joko Tri Laksono, 2018). In order to face
all the possibilities referred to above, people try to
delegate all possible losses to other parties who are
willing to replace their position. The way to transfer
risk can be done by entering into an agreement.
Which agreement has the objective of the party that
has the possibility of suffering a loss (commonly
known as the insured) it delegates to another party
who is willing to pay compensation (commonly
called the guarantor).
Robinson, . and Pakpahan, E.
Legal Consequences of Changing the Name of Heirs on the Insurance Policy.
DOI: 10.5220/0010294000003051
In Proceedings of the International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies (CESIT 2020), pages 15-21
ISBN: 978-989-758-501-2
Copyright
c
2022 by SCITEPRESS Science and Technology Publications, Lda. All rights reserved
15
This is insurance is a form of protection against
ourselves, protection in the form of finance against
unexpected events. Insurance itself is protection
against unexpected events (evenem). What if a
problem occurs, you can still protect your finances by
transferring to the insurance company as the insured.
In Indonesian society, awareness of insurance is still
very little. This uncertain event is a risk that must be
borne by the insurance company (insurer) during the
current coverage period. The definition of insurance
in Law Number 2 of 1992 concerning Insurance
Business is not much different from the definition of
insurance stated in the Commercial Code. Namely an
agreement between two or more parties, whereby the
insurer binds himself to the insured, by receiving an
insurance premium, to provide reimbursement to the
insured. Due to loss, damage or loss of expected
benefits, or legal liability to third parties that the
insured may suffer, arising from an uncertain event,
or for payments based on the death or life of the
insured person. Insurance participants are required to
pay a certain amount of money as a contribution to
the insurance company as fund manager. Insurance
participants will have the right to claim compensation
funds if there is a risk (Aidi, 2018). We can see that
the percentage of life insurance policy holders in
Indonesia is only 5%, which means that 265 million
of the population is only 13 million people who are
protected by life protection.
For example, in several years since 2000 there
were insurance companies that went bankrupt. This is
due to bad intentions or because of a lack of
supervision over insurance companies. This raises a
sense of distrust in our society towards insurance
companies. Some of the things that happen are when
changes to the contents of the policy or data in the
policy which we know as endrosment, which is a
change in the insured's data in the policy or to the
insured object. As is known in insurance, especially
in life insurance, there is a sum insured, which is quite
a fantastic figure. With the endorsement, it often
creates a desire for people to do evil to change the
content or change the existing inheritance to become
the property of one of the heirs or in whole or in part
without the knowledge of the policy holder or by
committing a criminal act.
Life insurance is a form of cooperation between
people who want to reduce or avoid future risks and
accidents. It is impossible for a person to know what
the next day will bring. Therefore, to reduce the risks
that may arise as a result of these things, people enter
into "reciprocal" insurance agreements, meaning that
each party has rights and also has obligations that
must be implemented.
This is enough to become a dilemma for the
community to take out insurance. As a follow-up in
order to create a consumer dispute resolution system
that is simple, fast and costs raised, the financial
services authority issued a regulation on dispute
resolution (Rahmawati & Rai Mantili, 2016).
Whether to help individuals who have good faith or
utmost good faith is a basic basis and trust that is the
basis of every agreement including insurance
agreements, and basically the law does not protect
parties with bad faith. As a reference for the principle
of good faith which is regulated in Article 1338
paragraph (3) BW, all insurance agreements are
specifically regulated in Article 251 of the the
Commercial Code. The principle contained in Article
251 of the Commercial Code is basically the principle
of utmost good faith.
This is enough to become a
dilemma for the community to take out insurance. As
a follow-up in order to create a consumer dispute
resolution system that is simple, fast and costs raised,
the financial services authority issued a regulation on
dispute resolution (Rahmawati & Rai Mantili, 2016).
Whether to help individuals who have good faith or
utmost good faith is a basic basis and trust that is the
basis of every agreement including insurance
agreements, and basically the law does not protect
parties with bad faith. As a reference for the principle
of good faith which is regulated in Article 1338
paragraph (3) BW, all insurance agreements are
specifically regulated in Article 251 of the
Commercial Code. The principle contained in Article
251 of the Commercial Code is basically the principle
of utmost good faith. A change in the name makes a
legal change that is different from the original
agreement. The act of it affects how the continuation
of the law runs on the contract. Because after all the
agreement is a binding law to the parties that bind it
in the agreement. Therefore, it becomes a problem if
the binding of the agreement is not maintained.
So that in this paper it is hoped that it can create
an impetus for oversight that causes a balance of
regulation and enforcement that achieves the goals of
the country from the point of view of regulations and
regulations in the insurance sector. Knowing how the
arrangements for changing the name of heirs and
insurance arrangements, regarding legal protection
against changes in the name of heirs, and knowing the
legal consequences of changing names. This principle
of perfect good faith is a lex specialist of good faith
based on the provisions of civil law. Then this is what
makes the author want to examine the "legal
consequences of changing the name of heirs on the
insurance policy".
CESIT 2020 - International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies
16
From the existing problems, it raises the problem
formulation of this research, namely, how does the
change in the name of the heir according to the
insurance law, the legal consequences of changing the
name of the heir, legal protection against the change
in the name of the heir.
2 RESEARCH METHODS
The research was conducted by juridical normative,
namely the method of legal research carried out by
the library method. The data taken from this research
comes from the 1945 Constitution; Civil Code; Trade
Law; and Law no. 40 of 2014 concerning Insurance.
In relation to normative research, approaching the
law and concepts. This approach looks at the
relationship between legal rules from various sides
and also the object of research, namely understanding
how to regulate and protect the change in the name of
heirs in insurance. That insurance are from one of
insurance at Medan city, Indonesia. That this research
point at how Indonesia laws about insurance are. And
how that they doing their clien from protection
against the change in the name of the heir.
From the existing problems, three things were
examined, namely, how to regulate the change in the
name of the heir according to the insurance law, what
is the legal effect on changing the name of the heir,
and legal protection against the change in the name of
the heir.
3 RESEARCH RESULTS AND
ANALYSIS
3.1 Regulations for Changing the Name
of Heirs According to the Insurance
Law
In its development, insurance law in Indonesia
originated from the Civil Law brought by the Dutch
royal government to Indonesia during the colonial
period. The existence of Indonesian Insurance Law is
rooted in a Codification of Civil Law (Code Civil)
and Commercial Law (Code de Commerce) in the
early nineteenth century during the reign of the
emperor Napoleon in France. At that time, the Dutch
Commercial Law only made articles regarding
marine insurance until it was promulgated in the Code
of Trade Law (Wet Boek van Koophandel) of 1838
regarding regulations on life insurance, fire
insurance, and insurance for crops. And until now,
this is what Indonesia has adhered to today.
This is followed, then regulated in statutory
regulations. Then, in line with its development, a Law
was formed. In its development, insurance law in
Indonesia originated from the Civil Law brought by
the Dutch government to Indonesia during the
colonial period. The existence of Indonesian
Insurance Law is rooted in a Codification of Civil
Law (Code Civil) and Commercial Law (Code de
Commerce) at the beginning of the nineteenth century
during the reign of the emperor Napoleon in France
(Junaedy Ganie, 2013). At that time, the Dutch
Commercial Law only made articles regarding
marine insurance until it was promulgated in the Code
of Trade Law (Wet Boek van Koophandel) of 1838
regarding regulations on life insurance, fire
insurance, and insurance for crops. And until now,
this is what Indonesia has adhered to today.
Legal provisions can play a role in providing a
balance between the parties. Community institutions
that are formed must operate in a form that is
compatible with everyone regarding what might be
their right and those who are most important in
society, namely the right to equal concern and
respect. The distribution of benefits and social
responsibility must be balanced and must appear
balanced in the sense that justice as fairness is
achieved.
Then the insurance arrangement regulated in the
Commercial Code, where the definition of insurance
is that according to Article 246 of the Commercial
Code, insurance is an agreement, whereby an insurer
binds himself to an insured, by receiving a premium,
to compensate him for a loss, damage or loss. the
expected benefits that he might suffer because of an
indefinite event.
Regulation rather than in the policy which is the
basis for the insurance arrangement by the company.
Regarding the name itself, it is necessary to fill in the
form and attachments until a letter of change is issued
which we usually refer to as an endrosmen.
In the endrosmen itself, it is very important if the
endrosmen cannot be shown together with the
original policy at the time of the policy disbursement,
the insurance benefit disbursement itself cannot be
done. So that the substitution of the identity or the
contents of the insurance does not apply at all.
3.2 Legal Effects on Change of Name of
Heirs
An insurance contract is also called a contingent
contract, which is a contract or promise in which the
Legal Consequences of Changing the Name of Heirs on the Insurance Policy
17
insurance company will do something depending on
the occurrence of an event, in this sense, the insured
still has to pay the premium regardless of whether the
insurance company carries out its promise or not.
Usually in insurance practice, the first step taken by
both the insurer and the insured is making an
insurance contract. The insurance contract regulates
the rights and obligations of both the insurer and the
insured as a policy holder. Regulations regarding the
rights of policyholders are still subject to general
rules, especially those relating to the form and content
of policies in the Commercial Code and the Insurance
Law. The regulation only regulates in general "lex
generalis" about policies, policy holders, and contents
but does not specifically regulate the rights of
policyholders, especially those related to investments
or funds deposited (Rato Dominikus, 2010).
Policyholder rights actually have to be formatively
regulated by law, especially to protect policyholders
from risks or events that do not necessarily occur. In
the practice of insurance, a person who is bound by
an insurance agreement is usually lulled by promises
and benefits in the next few years. Because there is no
legal guarantee, it is often difficult to account for
insurance practices, especially when the insurance
company goes bankrupt or experiences a loss. This
insurance system for policyholder rights is very
important to regulate, especially regarding the rights
in the funds or guarantees provided, especially to
policyholders.
In order to achieve this goal, the implementation of
economic development must pay more attention to
the harmony, harmony and balance of the elements of
equitable development, harmony, and balance of the
elements of equitable development, economic growth
and national stability.
One vehicle that has a strategic role in
harmonizing and balancing each of the elements of
the Development Trilogy is insurance. This strategic
role is mainly due to the main function of insurance
as a vehicle that can collect and channel public funds
effectively and efficiently, which on the basis of
economic democracy supports the implementation of
National Development in order to increase equitable
development and its results, economic growth and
national stability. Towards improving the standard of
living of the people at large (Abdulkadir
Muhmammad, 2015).
The ups and downs of the policy holder depend on
the ups and downs of the increase in insured capital
(new insurance buyers). Thus, additional reserves
(additional reserves) are affected by the increase in
the covered capital. In life insurance to determine the
amount of risk, many mathematical / statistical
formulas are used, namely a theory called probability
theory. In life insurance risk is the risk of death. So
the risk factor contains an element of uncertanity
(uncertainty or uncertainty). The amount of the
degree of risk (level of risk) depends on the size of
the deviation (deviation) between what is estimated
and the actual event (Guntara, 2016). The more a
person gets older the higher the level of risk, and vice
versa (Abdulkadir Muhmammad, 2015). To find out
the level of risk we usually calculate in%
(percentage). Example: A ship has a crew of 50
people. Of these, it is estimated that one person was
sick during the trip. It turned out that two people were
actually sick. Calculate how big the deviation and the
level of risk from the data above. Before we calculate
the level of risk, we must first know the formula for
the level of risk.
The policy should have recorded in detail how
then to change the contents of some or the
disbursement of funds that will occur. In many
insurers claim that the insured does not carry out good
faith (breach of utmost good faith) so that the
insurance claim submitted is rejected by the insurance
company. In many cases, very often the insured's
goodwill to do something related to the insurance
claim backfires because it turns out that the act
violates the terms of the contract. On the other hand,
the insured does not know that the good intentions
have turned out to be bad, which in turn becomes a
gray area where conflicts arise from claims for
compensation. It is the obligation of the insurer to
explain all matters relating to the insurance contract,
including before the contract starts. If the insurer does
not explain the rights and obligations of the insured,
the insurer has violated the principle of utmost good
faith.
Therefore, he can be sued and must be responsible
for the compensation suffered by the insured.
Nowadays the agreement or contract between an
insurer and the insured almost always uses a standard
agreement or contract (policy). The use of standard
agreements is carried out so that service transactions
can be carried out efficiently and practically without
any obstacles as a result of "bargaining" before
closing an agreement.
3.3 Legal Protection against Change of
Name of Heirs
Arrangements regarding insurance agreements are
contained in the Civil Code, Commercial Code, Law
No.40 of 2014 concerning Insurance Business and
other legislation.
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The insurance agreement is not specifically
regulated in the Civil Code, but the arrangement is
contained in the Commercial Code. However, based
on Article 1 of the Commercial Code, the general
provisions of the agreement in the Civil Code can
apply to insurance agreements. With regard to the
interests of policyholders, there are several provisions
in the Civil Code and the Commercial Code, namely:
1) Article 1320 of the Civil Code which regulates
the validity of the agreement, namely: agreeing
that they bind themselves, the ability to make
an engagement, a certain matter, a lawful
cause. This provision provides a consequence
that policyholders who think that the insurance
agreement has occurred due to heresy, coercion
and fraud (dwaling, dwang, and bedrog) from
the insurer can apply for the cancellation of the
insurance agreement to the court. If the
insurance agreement is declared null and void,
either in whole or in part and the insured /
policyholder is in good faith, the policyholder
has the right to demand a refund of the
premium that has been paid.
2) Article 1266 of the Civil Code stipulates that
the conditions for cancellation are always
considered to be included in a reciprocal
agreement if one of the parties does not fulfill
their obligations. For policyholders this must
be considered because of the possibility that the
person concerned is late in making premium
payments. However, this does not cause the
agreement to be canceled by itself, but the
judge must ask for cancellation. In practice, it
is usually stated in the policy clause that
stipulates that the insurance agreement will not
run if the premium is not paid on time. This is
to prevent any late premium payments from
asking the court to cancel it because it is
considered impractical.
3) Article 1267 is applied in the insurance
agreement; If the insurer who has the obligation
to provide compensation or an amount of
money to the insured has failed to promise, then
the policyholder can demand reimbursement of
fees, compensation and interest.
4) In the insurance agreement, the performance of
the insurer depends on events that are not
certain to occur. In order to prevent the insurer
from adding other requirements in providing
compensation or an amount of money, the
policy holder must pay attention to the
provisions of Article 1253 up to. Article 1262
of the Civil Code.
5) Article 1318 of the Civil Code can be used by
the heirs of a policy holder to demand that the
insurer provide compensation or an amount of
money to the insurer. This article stipulates that
if a person asks to be promised something, then
it is deemed that it is for his heirs and other
people. people who have rights thereof, unless
it is expressly stipulated that this is not the case.
6) Article 1338 contains several principles in the
agreement, first, the principle of binding
strength. This principle, if connected with an
insurance agreement, means that the insurer
and the insured / policyholder are bound to
carry out the terms of the agreement they have
agreed on. The policy holder has a legal basis
to demand the insurer to implement Second, the
principle of trust implies that the agreement
breeds trust between the two parties that each
other will fulfill his promise to carry out the
achievements as promised. Third, the principle
of good faith, which means that all agreements,
including insurance agreements, are also
interpreted as a whole that in the
implementation of the agreement, the parties
must heed recognition and propriety.
7) Article 1365 regarding unlawful acts can be
used by policyholders to sue the insurer if it can
prove that the insurer has committed an act that
is detrimental to him.
Several articles in the commercial law book
that can be used to protect policyholders,
include:
a. Article 254 prohibits the parties to the
agreement, either at the time of the
agreement being entered into or during the
life of the insurance agreement from
declaring to release things that are required
by statutory provisions. This is to prevent
the insurance agreement from becoming a
gamble or gamble.
b. Article 257 and Article 258. If you look at
the provisions of Article 255 of the
Commercial Code, it is as if the policy is
an absolute condition for the formation of
an insurance agreement. If you pay
attention to Article 257, it turns out that it
is not true. In this article it is stated that the
insurance agreement is issued immediately
after being closed, the reciprocal rights and
obligations of the insured and the insurer
come into effect from that time. This
means that if both parties have closed the
insurance agreement but the policy has not
been made, then the insured still has the
Legal Consequences of Changing the Name of Heirs on the Insurance Policy
19
right to claim compensation if the agreed
event occurs. The insured must prove that
the insurance agreement has been closed
with other means of evidence such as
correspondence between the insurer and
the insured. , underwriter notes, closing
notes, and other.
c. Articles 260 and 261 regulate insurance
covered by a broker or agent. From Article
260 it is known that if the insurance
agreement is closed through a broker, then
the signed policy must be submitted within
eight days of being signed. Article 261
stipulates that if there is negligence in the
matters stipulated in Articles 259 and 260,
the insurer is obliged to provide
compensation. . In this regard, based on the
results of the Insurance Law Symposium,
if there is an error by the broker or
insurance agent in providing services to
the insured, the insurance broker can be
prosecuted both civil and criminal.
With regard to efforts to provide protection for
consumers, in the Burgelijk Wetboek (Civil Code /
Civil Code) there are provisions aimed at protecting
consumers, as scattered in several articles of book III,
chapter V, part II starting from Article 1365 of the
Civil Code. . In the Indonesian Commercial Code, for
example regarding third parties that must be
protected, regarding the protection of passengers /
cargo in maritime law, provisions regarding
intermediaries, insurance, securities, bankruptcy, and
so on.
Likewise in the Criminal Code (KUH Pidana), for
example regarding counterfeiting, fraud, brand
forgery, fraudulent competition, and so on. In
customary law there are also principles that support
consumer protection law, such as the strong kinship
principle of indigenous peoples who are not conflict-
oriented, which positions each citizen to respect each
other. The principle of magical balance / natural
balance, the principle of "light" in transactions
(especially land transactions) that require the
presence of adat / village heads in land transactions.
The principle of social function of a right, the
principle of communal rights.
Law No. 8 of 1999 concerning Consumer
Protection, the provisions in it regulate the behavior
of business actors. This can be understood, because
the losses suffered by consumers are often the result
of business actors, so the behavior of these business
actors needs to be regulated and for violators to be
subject to appropriate sanctions. The essence of this
law is to regulate the behavior of business actors with
the aim that consumers are legally protected.
In the course of the consumer protection
movement, there are two kinds of adage, namely
caveat emptor (consumer beware) which then
becomes caveat vendor (producer beware). These two
caveats are closely related to the business strategy of
business actors.
During the strategic period of business, business
actors were primarily oriented towards their ability to
produce products (production oriented / product-out
policy), then during that time consumers had to be
vigilant in consuming goods and services offered by
business actors. At this time consumers do not have
many opportunities to choose goods and services to
consume according to their tastes, purchasing power
and needs. Consumers are "dictated" by producers.
Along with the development of science and
technology as well as the increase and distribution of
opportunities for education in the consumer society,
there is an increase in critical power in choosing
goods or services to meet their needs. Therefore,
business actors no longer stick to their old business
strategy with the risk that the goods and services
offered do not sell in the market but change their
business strategy towards meeting the needs of
market appetites and purchasing power (market
oriented / market-in policy) (Hartono, 1995 ). At this
time, it is the producers who have to caveat in
fulfilling the needs for goods and / or services from
consumers.
So that consumer protection from before the
incident is important. Both from supervision and
caution over incoming data. Until if it has happened,
the existing evidence has supported how the
enforcement process can run properly so that
consumers are not harmed by persons who do not
have good faith. Either by affirming sanctions by law
either by warning agencies or individuals who aid in
the occurrence of adverse events from insurance
events.
4 CONCLUSIONS
Policy arrangements in the name change according to
the insurance policy have been regulated in the
policy, in the form of an endorsement or change. This
is to show the identity and files of changes which also
see the goodwill of the insured or the insurer as well
as the people associated with the policy with caution.
The procedure for changing the name of a
policyholder is based on insurance, namely fulfilling
the requirements in the standard classification set by
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20
the policy or with the provisions of the company.
Where it meets applicable laws and regulations as
well as good faith and caution so that it does not cause
problems or disputes in the future. And also not
forgetting the principle of notification in accordance
with article 251 of the Commercial Code.
The submission will change the position of the
insurance beneficiary. Legal protection in the
insurance agreement in terms of a name change that
will occur with the contents of the insurance policy
and the provisions of the applicable laws. And if there
is an action that is detrimental to the parties, it is
through Mediation media, namely the Indonesian
Insurance Mediation Agency (BMAI), and if an
agreement cannot be made through the media, it can
be submitted to the District Court where the Policy
Holder or Branch Office is located. If there is bad
intention and falsification, the agreement can be
canceled and the person who did this can be punished
in accordance with the provisions of Article 78 of
Law Number 40 of 2019.
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Laws
Code of Civil law in Indonesia
Commercial Law Code in Indonesia
1945 Constitution in Indonesia
Law Number 40 of 2014 Concerning Insurance in Indonesia
Legal Consequences of Changing the Name of Heirs on the Insurance Policy
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