The Estate and Succession Planning Consideration That (Almost) No One Discusses

Introduction

The complex nature of estate and succession planning requires careful assessment of myriad considerations, such as the nature of estate (composition and location), family type (nuclear, joint or hybrid), and potential cost outlay (taxation and stamp duty) in order to achieve the objectives in an efficient manner.

However, while determining the costs associated with planning, an oft-overlooked factor is the court fees that may be payable when the components of the succession plan are set into motion post demise. If not evaluated when devising the estate plan, court fees might come as a rude shock to heirs seeking to implement the succession plan of a deceased family member. Continue Reading The Estate and Succession Planning Consideration That (Almost) No One Discusses

A handwritten will signed by two witnesses is considered valid

 

The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the  following Q&A which was published by the Mint Newspaper on 5th August, 2020 and the online edition of the same can be found here.

My father passed away intestate. We are three siblings. My mother and I live in the house owned by my father, and I want this property to be transferred in my mother’s name. My brother and my sister live separately. Is there a way in which the house can be transferred to my mother without any involvement of my brother?

—Omkar

Continue Reading A handwritten will signed by two witnesses is considered valid

SUSPICIOUS CIRCUMSTANCES & WILLS

The Supreme Court in the case of Kavita Kanwar v. Mrs. Pamela Mehta (“Kavita Kanwar case”), has extensively discussed certain key factors that may render a will surrounded by suspicious circumstances as invalid.

While drafting, a will may bring up feelings of discomfort, it is one of the key elements of estate planning and ensures that the testator’s wishes for distribution of his or her assets is met. Additionally, it brings about a sense of security in the testator in relation to their assets, and when considered, the advantages of drafting a will, outweigh the temporary discomfort caused by the process. Continue Reading Suspicious Circumstances & Wills

Wife can manage late husband’s HUF if all coparceners are minors
Photo: istock

The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the  following Q&A which was published by the Mint Newspaper on 22nd July, 2020 and the online edition of the same can be found here.

My late husband had mutual fund investments under Hindu Undivided Family (HUF). I have a son and daughter, who are minors. While some mutual funds have agreed that I can be the karta and are willing to let me liquidate investments, but two are saying I can’t be a karta. Can you explain?

—Swati Kesarkar

Continue Reading Wife can manage late husband’s HUF if all coparceners are minors

The Opportunity of a Lifetime for HNIs—Saving the Indian NGO Sector

This post is written by the authors in collaboration with our Guest Authors –  Ashish Karamchandani, Senior Advisor at FSG and Abhishek Khanna, Senior Consultant at FSG

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The year 2020 will be etched in our memories for a long time. COVID-19 has blindsided most of us. The non-discriminating virus has not spared any country, religion, or occupation, and has impacted the lives of every individual in the world.

Yet some have suffered more than others. In India, the impact has been greater on the marginalised groups in cities, such as the migrant workers and the low-income households. Nearly four crore individuals are reported to be without work or home, and their plight is unlikely to end any time soon. Although, the pandemic is status neutral, and can affect anybody belonging to any strata of the society, containment zones have shifted from the more affluent parts of cities to the slums and other congested areas.  A third group comprising the aging citizens in cities, bereft of any support system, also remain vulnerable. Continue Reading The Opportunity of a Lifetime for HNIs—Saving the Indian NGO Sector

Women and Maintenance

Maintenance, as a concept, has its roots in the social justice system of a civilised society. The Supreme Court, explaining the rationale behind providing maintenance in the case of Badshah v. Urmila Badshah Godse and Anr[1], has held that the “provision of maintenance…aims at empowering the destitute and achieving social justice or equality and dignity of the individual. …The law regulates relationships between people. It reflects the values of society.” In India, the right to claim maintenance is statutorily available under both personal and general laws, and such a right cannot be taken away by way of an agreement to the contrary[2]. Maintenance can be awarded during the course of the proceedings (i.e. maintenance pendente lite) or at the conclusion thereof (i.e. permanent maintenance). The right to claim maintenance is available to wives, children and parents. Under certain personal laws, even husbands (who are unable to maintain themselves) are entitled to claim maintenance.  This article discusses the provisions under various personal and general laws that entitle a wife to claim maintenance. Continue Reading Women and Maintenance

‘In terrorem clause’ is used to reduce chances of challenge to a Will
Photo: istock

The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the  following Q&A which was published by the Mint Newspaper on 7th July, 2020 and the online edition of the same can be found here.

I live in the US. I have made a Trust deed before a notary in Texas, with my children as beneficiaries. The deed has a foregoing clause, which says claims filed by my heirs challenging the conveyance of my assets to my children will result in the forfeiting of the rights of the claimants if they fail to prove that the conveyance transactions were effected on the legal grounds of fraud, coercion etc. Is the foregoing clause valid in India?

—KB

Continue Reading ‘In terrorem clause’ is used to reduce chances of challenge to a Will

Provenance, simply put, means the history of the whereabouts of an artwork from the day it was created by the artist to the present. While provenance is generally intended to be a ‘chain of title’ that includes every owner of the work since its creation, in practice, it typically tends to merely include a listing of some interesting facts concerning the background of the work, such as notable former owners and exhibition of the work at some prestigious venues.[1] An ideal provenance must, at the very least, contain important information such as the dimensions, medium, date of creation of the artwork and must provide documentary record of owners’ names, date of ownership, methods of transference – inheritance, or sale through a dealer or auction, locations where the work was kept, from the time of its creation by the artist until the present day.[2]

Continue Reading Provenance in the Art Market – Is Blockchain the Way Forward?

 

The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the  following Q&A which was published by the Mint Newspaper on 24th June, 2020 and the online edition of the same can be found here.

I have executed a gift deed in favour of my son and my wife. In the gift deed, the first name is of my son and the second name is my wife’s. The gift deed is unconditional. Moreover, the property in question is only a vacant plot of land.

I want to know whether after the death of my wife if our daughter can claim her share in the property.

—Name withheld on request

We understand that you have transferred the property (the vacant plot of land) by a gift deed to both your son and your wife, and that your son is the first title holder and your wife is the second title holder in the property.

Accordingly, it is important to understand the nature of the ownership of the property, since this would also determine the succession of title.

If your son and your wife hold the property as joint tenants, then on the demise of either of them, their share in the property would automatically devolve upon the other. Whereas, if your son and your wife hold the property as tenants-in-common, on the demise of either of them, the share of the deceased tenant-in-common in the property, would devolve upon the legal heirs of such deceased tenant-in-common, in accordance with the rules relating to intestate succession.

We assume that you and your family are Hindus. Accordingly, if the property is being held by your son and your wife as tenants-in-common, upon the death of either of them, their share would pass on to Class I heirs of such person. However, if the property is being held by them as tenants-in-common, they may each execute a Will in favour of any person during their lifetime and exclude their legal heirs.

Accordingly, if your wife executes a Will stating that her share in the property would be bequeathed exclusively to your son, then upon her demise, the entire property would become part of your son’s estate.

The legal heirs of your wife (including your daughter) will have no claim over such property. We recommend this Will be prepared at the earliest, if not already done.

 

 

In India, the law and practice in relation to property and inheritance have traditionally been more patriarchal. Unfortunately, married daughters were quite often not regarded as the heir apparent to a family’s estate and business; and sons continue to be the ‘chosen ones’. Many business families remain reluctant to pass their business wealth and assets onto their married daughters due to the perceived risk that the property ends up being controlled by the in-laws of the daughters. This becomes even more pronounced for ‘promoter’ families with significant holdings in public listed companies. How can such Promoters pass on their business wealth to their daughters, and can they do so without losing control over the company?

Continue Reading SEBI clarifies status of married daughters becoming promoters in listed companies