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Civil Procedure

INTRODUCTION:

It is trite law that a personal action or claim extinguishes with the death of a person. This principle has been appropriately captured in the common law maxim – “action personalismoritur cum persona”, which is the Latin equivalent for “a personal right of action dies with the person”. The maxim, however, has limited application on cases, such as (i) a defamatory action, (ii) criminal proceedings in lieu of personal injury not amounting to murder, (iii) where the grant of any relief in a suit would be nugatory owing to the death of a party, etc. However, where a judgement debtor dies before fully satisfying a money payment decree, the decree holder can apply to the court that had passed the decree to get the decree executed against the legal representatives and/ or legal heirs of the deceased judgement debtor. Here, the above mentioned common law maxim has no application. In this paper, we will discuss the extent of liability of a legal heir in such a situation where the judgement debtor has expired before the execution of a money decree.Continue Reading Liability of Legal Heirs Vis-À-Vis Code of Civil Procedure

Living Will

The following article was first published in the Mint newspaper on 29th March, 2023. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

What is a living will? Is it any different from a regular will?

—Name withheld on request

A living will is a written legal document that individuals can execute during their lifetime, whereby they can specify whether they shall or shall not be given medical treatment in the future if they become terminally ill. It does not deal with the disposal of any property, either during one’s lifetime or after death. On the other hand, a last will and testament is a formal, legal declaration of the intention of individuals with respect to their property which they desire to be carried into effect after their death—strict formalities apply to its execution and implementation.Continue Reading What is a living will and how is it different from a regular will?

Source: HBO.com

“I’m not saying I’d make a better CEO. That’s unsaid.” – Connor Roy

At the time of publication, we are just a few days away from the release of the final season of HBO’s highly acclaimed family business drama, Succession. For many viewers in India, the show’s portrayal of the perils and tribulations of running a family business hits uncomfortably close to home. Many would say this show is an example of art imitating life. Others may see it as a docudrama about their family business. It is a poignant example of what can happen without a clear succession plan, and it packages together many common issues faced by many Indian family businesses – such as an aging founder who is unwilling to cede control or induct his middle aged children, a failure to modernize (as seen in many older media houses that are going through similar existential dilemmas), siblings squabbling for the CEO role, and a founder family & business enthralled in multiple full-blown crises.Continue Reading HBO’s Succession: Reel-to-Real life lessons for Indian Family Businesses

Source: Livemint.com

The following article was first published in the Mint newspaper on 14th February, 2023. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

A woman sold her share of the ancestral property in 1960. Can her three children, all of whom were born after the sale, have any claim in the ancestral property?

—Name withheld on requestContinue Reading Can children claim rights over property that has been sold?

Will
Source: Livemint.com

The following article was first published in the Mint newspaper on 8th November, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

I had prepared a will in 2019 and got it registered. Now, I need to make some changes to it and include some additional items. Can I get the original will deed modified and get it registered again?

—Name withheld on requestContinue Reading How do I make changes to a will that was registered 3 years ago?

Should I write a will or form a trust to distribute my assets
Source: Livemint.com

The following article was first published in the Mint newspaper on 1st November, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

I am 76 years old and hence want to write a will. I have two houses worth ₹2 crore. We are living in one of the houses and the other is rented for ₹75,000 per month. We also booked a shop having a resale value of ₹1 crore. I have ₹1.6 crore in mutual funds and ₹65 lakh in shares. 

I have a wife and a daughter. I want all my assets to be given to my wife and thereafter to a trust that should decide on monthly distribution  of income from the assets to my daughter and grandson. Thereby, I want to ensure that the assets generate wealth without being misused by anyone. Please guide me on how I should go about setting up a trust.

—Name withheld on requestContinue Reading Should I write a will or form a trust to distribute my assets?

How is property divided if any of the heirs die after a will is made
Source: Livemint.com

The following article was first published in the Mint newspaper on 18th October, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

My grandfather left a will in the name of my father in 1996 for one-third share in his property. My father died in 1997 leaving me, my sister and mother behind. My grandfather died in 2008 leaving behind his three children and a wife (my grandmother). As per my knowledge, the will isn’t registered with the sub-registrar. In 2022, the land was divided into five equal shares, with the will not coming into consideration. 

I want to understand whether the will is valid considering that my father died before my grandfather? Can the will leave its content to me, my sister and my mother since we are heirs of my father ? If yes, will my father’s share be considered in the two-third of the land that doesn’t show up in the will?

—Name withheld on requestContinue Reading How is property divided if any of the heirs die after a will is made?

Do FDs accrue interest after owner’s death
Source: Livemint.com

The following article was first published in the Mint newspaper on 4th October, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

My parents died and I am their nominee in the various fixed deposits (FDs) they left behind. The FDs will mature on different dates in the next two years. Can I withdraw an FD at the time of maturity? What would be rate of interest payable on these deposits from the date of death of parents till the maturity date. Also, is it compulsory for the nominee to withdraw all FDs after the death of the holder?

—Name withheld on requestContinue Reading Do FDs accrue interest after owner’s death?

How to deal with claims on a property when there is no will.

The following article was first published in the Mint newspaper on 10th August, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

My great-grandfather had two sons and three daughters. He had purchased a property in 1980 but died without leaving a will. Recently, both his sons and a daughter died. The other two daughters are claiming a share of that property from my father and uncles. The property has been maintained by my grandfather, my father and uncles for the past 35 years. The two had been given a fixed amount of cash along with some jewellery by my grandfather but that is not recorded anywhere. What can we do in such a situation?

—Name withheld on request
Continue Reading How to deal with claims on a property when there is no will

Can you contest for any changes in a will made by your father
Source: Livemint.com

The following article was first published in the Mint newspaper on 3rd August, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

My father has in his will made long back stated that his property should be transferred in the name of my elder brother in the unfortunate event of his death. I am married now but as his only daughter, can I contest for changes to be made in the Will and thereby get a share in his property?

—Name withheld on request Continue Reading Can you contest for any changes in a will made by your father?