Dr SD Israni, advocate & partner, SD Israni Law Chambers, spoke on the need for preparing a comprehensive Will and explained how to complete all the requisite nomination & transmission formalities
"Many of us keep postponing the day of reckoning. But it's imperative that you have to leave behind a comprehensive Will. So better start thinking about it," said Dr SD Israni, advocate & partner at SD Israni Law Chambers. He was speaking at a seminar on Wills and nominations, organised by Moneylife Foundation on Saturday, 24th September.
Drawing from his long experience, Dr Israni talked about how to prepare a comprehensive Will, and how to complete all the requisite nomination & transmission formalities for both movable and immovable properties. He explained terms like probate, transmission and nomination, which play a crucial role in matters regarding shares and other assets.
The main elements of a Will are the name and identity of the author/testator, two witnesses and their addresses, the list of assets and their distribution. This must be signed by two witnesses and the testator in the presence of each other. He said, "A codicil is a part of the Will, which comes into play if some minor changes are to be made. If you have to make major changes, like naming a different heir, make a new Will."
The religion of an individual matters for succession under the Hindu Succession Act, Muslim personal law, Parsi personal law, Christian law and for others by default under the Indian Succession Act. When asked about assets which are not mentioned in the Will, he said, "Assets or shares, etc., which are mentioned in the Will automatically go to the successor as per law, or stay with the nominees or owners specified."
Dr Israni explained the difference between being a nominee and an heir in case of transmission of shares. Traditionally, it was understood that a nominee is like a trustee, who has to transfer the shares to the legitimate heirs or claimants. However, last year, a Bombay High Court ruling said that a nominee can possess the shares like an heir unless an order is issued in favour of the heir. "This kind of misbalances the legal interpretation," he said.
However, in such a case, if the shareholder has already willed his shared to an heir, the nominee's claims will be overridden. But for that, the claimant has to prove he is entitled to those, and has to have the Will probated.
When asked about immovable properties held jointly, he said, "The nominees all have shares in that property. So if they want to sell it, they have to come to a conclusion together and then go for stamp duty that is associated with normal property sales. In some other aspects, the cooperative society can have a say-but ultimately, if there is a dispute, the matter must be settled in court."
Dr Israni said, "Young or old, one must make a Will. If one leaves a clear, simple, attested Will which clearly specifies whom he wants to give what, then legal hassles can be avoided. All you need is a piece of paper and two witnesses."
As concepts, a seal of excellence or social performance management will make good yardsticks to monitor Microfinance Institutions, but there will be practical difficulties in measuring these yardsticks and implementing them
A friend alerted me to a paper being presented at a forthcoming international microfinance conference in the later part of 2011. The paper provides the conceptual basis by which MFIs (microfinance institutions) can avail themselves of a seal of excellence-a quality symbol. While the idea is an excellent one, there are a number of practical issues that make implementation of this seal of excellence rather difficult. Let us try and understand the various issues by looking at social performance management in microfinance, which is also a tool that seeks to provide similar (social quality) 'assessments' with regard to MFIs.
Figure 1 gives an overview of the Social Performance Management (SPM) process at MFIs, as articulated by expert stakeholders: "The central arrow demonstrates how an MFI's mission is translated into specific social performance objectives. Through the design of operational systems and products, specific outcomes are achieved in terms of reaching the desired target client groups and meeting their needs. Meeting the needs of target clients leads to the desired changes relating to the social mission of the MFI. Surrounding this arrow is the SPM process. This involves monitoring and assessing progress at each stage of the arrow, and the information produced is fed into generating improved microfinance practice and also used for wider SPM reporting to stakeholders in terms of clients reached, benefits generated to them and the extent of impact created by microfinance."i
The above process may be clear with regard to traditional (paper) models of microfinance but when MFIs use the agent-led decentralised microfinance model, which is what is happening increasingly in India, the last mile end-user client is not at all known. Therefore much of what is envisaged in Figure 1 may not be possible in Figure 2, due to the agent-led decentralised modeliii and lack of information/clarity with regard to servicing the end-user clients at the last mile.
I raise several (starter) questions for SPM advocates and practitioners with regard to the agent-led decentralised model and hope that they factor these into their frameworks:
Thus, under circumstances such as the above, it would be impossible to assess aspects as the following, so critical for SPM:
The above also raises very serious questions about social performance in the decentralised MFI model, currently in vogue in Indian microfinance and these are summarised below:
1. While it is great to talk of social performance, internal controls and the like, how do you enforce this on the ground in a practical sense when you have multiple agents colluding with fraudulent staff (often hired without serious background checks and practically no training) and MFIs that rely heavily on an agent-led fully decentralised model with perhaps the wrong incentives?
2. Given that a lot of growth has occurred (and is perhaps still occurring) through outsourcing to agents, where the end-user clients may not be strictly traceable, how can social performance be enforced in a practical sense? What lessons can the Indian and global microfinance industry learn from past (failed) efforts to enforce codes of conduct and the like?
3. When simple internal controls (and internal audits) were busted and disregarded during the phenomenal growth phase of Indian microfinance (2006-2010) that saw the burgeoning growth of multiple lending and other malpractices, with what confidence can we expect social performance to be implemented on the ground?
4. When MFIs operate using different kinds of agents in an outsourcing model, how can one be sure of the data that is provided by the MFIs with regard to SPM? How can we rely on self-reported data that is supplied by the MFIs with regard to these, especially when many MFIs may not even be aware of who their clients are because of the prevalent agent models?
When one considers these and other questions, the credibility of SPM as a sub-field of microfinance and financial inclusion is seriously at stake. I sincerely hope that the so-called practitioners of SPM address real ground-level issues rather than merely focus on high-level concepts that can at best be called as superfluous and perhaps even redundant. In fact, I would like you all to read this very interesting real life story that shares some parallels with the social performance management situation and related reporting.
"It was the autumn of 2008 and Satyam Company Secretary G Jayaraman was beaming. For the second time in six years, India's IT outsourcer had walked away with the coveted Golden Peacock Award for excellence in corporate governance, an award instituted by the World Council for Corporate Governance. Later that week, Vadlamani Srinivas proudly told the press that the award was 'a testament to our [Satyam's] efforts to continually innovate corporate governance best practices in the industry.'
The Golden Peacock was not the first award that year. In April, a global investor relations firm MZ Consult ranked Satyam among the top five companies in the Asia-Pacific region in the financial disclosure procedures category. 'We are pleased to be recognised... Our practices are designed to provide complete, accurate, timely information in clear formats,' said Vadlamani Srinivas. To the corporate world, Satyam's hubris was well earned. After all it had all the bells and whistles required of a well-governed modern-day company. Satyam's five-star board of directors, as onlookers liked to call it, had just the right number of independent directors with just the right credentials-eminent scholars and administrators. Also, Satyam had Price Waterhouse-one of the big four audit firms-as the statutory auditor. All was well with Satyam's world-or so everyone thought.
Two blows dealt to the company's image within a span of one month ended Satyam's high-prized innocence-the fateful board decision taken on 16 December and then Ramalinga Raju's confession of 7 January. Never in the history of corporate India has a company fallen so hard and fast. And everyone, from investors to experts, attributes this to the failure of the company's corporate governance controls. In fact, all events surrounding the scam-the aborted Maytas bid, World Bank barring the company from all bank contracts-were being linked to the way Satyam was governed ." v
The moral of the story is clear: It is always very easy to provide very positive data and reports that paint a great rosy picture but what may actually be happening inside could be very different. Several organisations that have won the well-intentioned CGAP award for transparency in microfinance have also been reported as having serious corporate governance violations.vi
Likewise, social performance is a great concept on paper, but sadly does not exist on the ground. It is wonderful to talk about it in a workshop in Mumbai or Delhi or Barcelona or Washington but let us get the facts clear-there is nothing like that in operation in India and make no mistake, the ground situation in several of India's populous microfinance states including Andhra Pradesh, Tamil Nadu, Karnataka, Orissa and West Bengal is far from that.
Therefore, using so called tools of social performance or seals of excellence-merely to justify the existence of such (and especially, for-profit) MFIs—that look great on reports but are rarely implemented (or visible) on the ground, certainly does not befit the status of a strategic industry like microfinance. And it is about time that we start asking the question as to why, many so-called great concepts (like social performance or codes of conduct or even principles of corporate governance, etc) are not implemented on the ground and in the field rather than creating newer and newer tools that may have lesser and lesser relevance to field realities. Therefore, let us stop creating tools to merely justify existence of MFIs and rather focus on building a really transparent client-oriented low-income financial services industry that provides real tangible benefits on the ground.
iQuoted with adaptation from social performance management in microfinance: Guidelines by Imp-Act in collaboration with Microfinance Centre, (2005)
iiQuoted with adaptation from social performance management in microfinance: Guidelines by Imp-Act in collaboration with Microfinance Centre, (2005)
iiiPlease see previous Moneylife articles on microfinance agents -http://www.moneylife.in/article/how-and-why-did-microfinance-agents-become-a-part-of-the-indian-microfinance-business/19301.html, http://www.moneylife.in/article/implementation-safeguards-against-notorious-agents-are-an-imperative-for-the-proposed-microfinance-bill/19017.html and http://www.moneylife.in/article/proposed-microfinance-bill-has-to-look-at-the-re-leader-as-a-microfinance-agent/20019.html
iv Quoted with adaptation from social performance management in microfinance: Guidelines by Imp-Act in collaboration with Microfinance Centre, (2005)
v Quoted with adaptation From Governing The Corporates, Aanand Pandey, Business Standard, in The Satyam Saga 2009.
vi Consultative Group to Assist the Poor, www.cgap.org
(The writer has over two decades of grassroots and institutional experience in rural finance, MSME development, agriculture and rural livelihood systems, rural/urban development and urban poverty alleviation/governance. He has worked extensively in Asia, Africa, North America and Europe with a wide range of stakeholders, from the private sector and academia to governments).
"Every listed issuer offering IDRs through a rights issue shall prepare offer documents in accordance with the home country requirements," SEBI said in a circular
Mumbai: Market regulator Securities and Exchange Board of India (SEBI) on Friday said companies offering Indian Depository Receipts (IDRs) through rights issue have to file offer document as per the prevailing norms in the country, reports PTI.
Through a notification, SEBI on Friday amended the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009, by adding a chapter relating to rights issue of Indian Depository Receipts (IDRs).
"Every listed issuer offering IDRs through a rights issue shall prepare offer documents in accordance with the home country requirements," SEBI said in a circular.
IDRs are the instruments through which a foreign company raises capital in the country by offering underlying shares to domestic investors.
So far Standard Chartered is the only foreign company which has come out with an IDR issue and the SEBI circular would provide them with guidelines for coming out with a rights offer.
Through a rights issue, a company raises funds by allotting shares to its existing shareholders.
SEBI further said that if the issuing company is in breach of the IDR listing agreement then it cannot come out with a rights offering.
The issuing company would have to inform the stock exchange where its existing IDR is already listed, about the rights issue. Further, the IDRs issued by way of rights issue would have to be listed on one of those stock exchanges in the country.
On fast track issue, the regulator said if the issuer had no disagreement with the stock exchange on the provisions of deposit agreements and listing agreements for at least three years, without any pending show-cause notices or prosecution proceedings, the issuer can get approval for the same.