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

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

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

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.

CESIT 2020 - International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies

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

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

CESIT 2020 - International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies

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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Legal Consequences of Changing the Name of Heirs on the Insurance Policy