Dead Man Walking (With apologies to Sean Penn)

Legal issues about a person who does not ‘exist’ anymore

Last month, Judge Allen Davis, presiding in a court in Ohio (USA), told the man seated in front of him, “No, you are still deceased.” Donald Eugene Miller Jr, was in court wanting to be told that he was alive. According to the judge, Miller was as dead as a dodo, “...in law.” This author has always maintained that though people might say the law is an ass, it is not a donkey. So why is a living, walking, talking, man declared ‘dead’?
You be the judge on this one. It has not been decided yet.

Donald Miller was living in Arcadia. Having lost his job, he decided to try his luck elsewhere. The ‘elsewhere’ happened to be 1,700km away. It took him 19 years to get back. By which time he was declared dead. Or, at least, ‘legally dead’.

The law in America states that if a person is unheard of, not seen, not contactable for five years, he is ‘presumed dead’. A similar law exists in India and the period of waiting is seven years. The reason for this is simple. There are situations that need to be taken care of. The man’s estate. The man’s family. The man’s insurance.

After the period of waiting, interested parties approach the court. Following due diligence, the court arrives at a decision and pronounces the person ‘legally dead’. His estate is settled, either by his Will and through a probate, or as an intestate’s property. The wife, or husband, is declared a widow or a widower. The insurance is paid out as per the law.

There is, of course, a built-in safeguard. The process takes a specific period of time. It can be reversed, if circumstances can be proved otherwise. On the other hand, if it is proved that the person has, indeed, died, the ‘legally’ tag can be eliminated. The problem arises when, in spite of all the procedures, the person turns up alive, as Donald did.

You be the judge.

The matter has been discussed in public and some tongue-in-cheek comments made. “If Donald is murdered, can a person be charged with ‘killing’ a dead man? Would it amount to desecrating a corpse?” Will the insurance company charge Donald, or his heirs, with fraud, ask for repayment and cancel the policy for lapse? But these are small problems compared to the ones that Donald is facing.

A ‘dead’ man can have no identity. In America, there is the social security number, something on the lines of the aadhaar, which is cancelled on a person’s death. On ALL records, Donald is now non-existent. He cannot get a stable job nor can benefits be given him as an unemployed person. No one will give him medical assistance except out of humanitarian concern. He cannot get a driving licence nor can he use his old licence because then he would be arrested for impersonation. The list is endless and can only grow by the day.

The author suggests a solution. Use existing laws to relieve, and ‘relive’, the poor man from his burden. After all, it wasn’t he who asked for him to be declared dead. All this was, technically, done behind his back. He was not a party to this unhappy state of affairs that the State has put him in. There is what is called the ‘witness protection programme’. Whistleblowers, whose lives are in danger, are given a new identity and relocated to protect them from retribution. That could be tweaked a bit and Donald resurrected from the ‘dead’. Rebirth, if you wish. And called Donald Eugene Miller III.

As for the ‘murder’ question above, the killing of a ‘dead’ man would still be a crime. The body would be the necessary evidence of murder. The victim, non-identifiable, would be named John Doe, a common term used when a person’s name cannot be established.
(And, in India, we could give him a government job where he would simply ‘disappear’ once again; as most government servants are wont to do!)

apoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected] or [email protected]

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Equity mutual fund schemes continue to suffer massive redemptions

As much as Rs6,139 crore was redeemed from equity mutual fund schemes during October 2013, leading to a huge net outflow of Rs3,542 crore for the month

Equity mutual fund schemes have reported a net inflow of funds in just three of the past 18 months. Over the past twelve months, as much as Rs15,000 crore has flowed out of equity mutual funds. Though sales of equity schemes improved in October to Rs2,597 crore compared to Rs1,996 crore in September, high redemption pressures led to a massive outflow of Rs3,542 crore, the highest in the past 13 months. Redemptions peaked to Rs6,139 crore, the highest in the past four months.

 

 

With the heavy redemption, the number of equity folios also declined. The number of folios declined to 30.62 million in October from 31.17 million in September. Despite the huge outflow, equity assets under management (AUM) in October increased by 6.77% to Rs1.73 lakh crore from Rs1.62 lakh crore in September, thanks to a boost in stock markets. Over this period the S&P BSE Sensex gained as much as 9.21%.
 

Since the beginning of April 2013 to the end of October 2013, equity folios have declined by 7.69% to 30.62 million from 33.17 million recorded on 31 March 2013. According to a report from CRISIL on mutual fund folio numbers, a sharp decline in retail folios was mainly in the equity category which has been impacted by the ongoing volatility in the segment. “Macroeconomic weakness in the domestic market coupled with some mixed cues from the global market led to the decline in the local market,” the report stated.

While retail investors are moving out of equity, high networth individuals have not lost their faith in the long term wealth generating asset. According to the research report, the total folios held by high networth individuals (HNI), defined as individuals investing Rs5 lakh or more, rose three times in the first half of the current financial year led by a sharp rise in equity folios. In the category, the equity segment added over 14.27 lakh folios followed by balanced funds and debt oriented funds, which added 3.45 lakh and 2.72 lakh folios in the past six months (ended September 2013). In AUM terms, HNI portfolio in equity oriented funds increased by 30%.
 

The CRISIL report further stated that, debt funds continued to attract retail investors with the category witnessing an uninterrupted rise in retail folios since March 2009. Debt funds added 1.79 lakh folios over the past six months (ended September 2013) compared to 1.69 lakh folios added in the previous six months ended March 2013.

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COMMENTS

jaideep shirali

4 years ago

I feel that our investors want to invest in assets that have the lowest risk, but highest return. But risk and reward always move in opposite directions. We would not buy any commodity, say, mangoes at the beginning of the season at some thousand rupees a kilo, but wait till they come to affordable levels. However, in stock markets, our investors wait till the markets have risen, then they buy. At low prices, we somehow think the world is coming to an end. It is no surprise that the buying at peak prices is followed by a loss, due to stock market cycles. Hence the investor's frustration with equities. Equities outclass other assets in the long run in returns. Mutual funds invest not only in equities, but also debt, gold, government securities, etc. Similar is the case with ULIPs, where investors should choose their portfolio, not just blindly sign a cheque. As each investor has his own tolerance for risk, we must invest to the extent we are comfortable with. I do not think criticism of mutual funds as an investment is warranted.

Suiketu Shah

4 years ago

The intentions of the MF companies and their fund managers are anti-investors inspite of the knowledge they have which is why investors and leaving MFunds and rightly so.

D A Bhatt

4 years ago

Mutual fund establishments are operating in our country for almost over thirty years. In fact they are rotten seeds of western economy and wrongly implanted into economic soil of our country. Now white investors of our nation have understood that their operating principles are not suitable to economic and social texture of indian society. Basically; they follow money siphoning and laundering techniques under legal protection provided by nonaccountable authorities of our country at the cost of poor knowledged investors. I am of opinion that all types of ULFPs following NAV based procedures must be banned with immediate effect in our country. unfortunately; in our country financial wisodum is an individual entity and not mass perception.

Prakash

4 years ago

The government is more concerned for FII investment than retail investment. We have seen consequences of this in September when FII withdrew money from equity as well as debt markets. The faith of retail investors in Indian financial products has been shattered. The government directed investment like home loan { tax exemption on interest and principal),ELSS,small saving schemes creating anomaly in investment preferences by retail investors. Why bonds are given indexation benefit? Why not on FD's? These anomalies must be addressed by government. Then only the faith of retail investor will be restored. Till then we have to face such volatility.

Prakash

4 years ago

The government is more concerned for FII investment than retail investment. We have seen consequences of this in September when FII withdrew money from equity as well as debt markets. The faith of retail investors in Indian financial products has been shattered. The government directed investment like home loan { tax exemption on interest and principal),ELSS,small saving schemes creating anomaly in investment preferences by retail investors. Why bonds are given indexation benefit? Why not on FD's? These anomalies must be addressed by government. Then only the faith of retail investor will be restored. Till then we have to face such volatility.

Nilesh KAMERKAR

4 years ago

'Experts' are calling these heavy redemptions as 'profit booking', 'taking money off the table', while pointing to Sensex @21000.

But, the fact, mutual funds have failed to attract fresh investments from Indian Savers / Investors

It is less about index levels, & more about incentive levels. Things may not improve till the powers that be get the incentives right.







India’s trade deficit widens to $10.6 billion in October

The rise in India’s imports is due to seasonality, as imports tend to rise ahead of the festival season, says Nomura

India's trade deficit widened to $10.6 billion in October from $6.8 billion in September. Overall global demand is improving, but higher imports (of oil, gold and others) have led to the deterioration in India’s trade deficit. The rise in imports is due to seasonality, as imports tend to rise ahead of the festival season, says Nomura in a research note.

 

Export growth rose to 13.5% in October from 11.2% in September, which suggests that global demand continues to recover. Imports contracted 14.5% in October compared with a decline of 18.1% in September, which reflects continued weakness in domestic demand. Within imports, gold and silver imports rose slightly to $1.4 billion in October from $0.8 billion in September ahead of the festival season but was still down sharply from year-ago levels (-80%); oil imports rose 1.7% versus a decline of 5.9% in September; while imports excluding oil and gold fell a more muted 2% from -12.6% in September, according to the research report.

 

Nomura said, India's current account deficit (CAD) is likely to moderate to $54 billion in FY14 from $88.2 billion in FY13 due to better exports, weak domestic demand and a policy-driven reduction in gold imports.

 

"Large inflows under the FCNR(B) deposit scheme and the delayed QE taper have led to a surge in capital inflows since September. However, with the FCNR(B) deposit window to close soon (by end-November), oil marketing companies' demand gradually being shifted back to the market and changing expectations around the US QE taper (our US economists now assign a higher probability to a taper in January 2014 relative to March 2014), financing may remain a challenge," it said in a research note.

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