Ademption of a gift – the failure of a gift in a will because it no longer exists
Administration of an estate – term used for the work of the executor or administrator in carrying out the terms of a will
Adult child – a child over 18 years of age
Alteration to a will – a change to a will. These are not permitted unless they are properly executed (see codicil)
Alternative dispute resolution – settlement of a dispute outside the court process (see collaborative law and mediation)
Ancillary fund – a public fund that is established under a will or instrument of trust that invests its funds only as permitted by Australian law applying to trustees and is established or maintained solely for:
- the purpose of providing money, property or benefits to DGRs; or
- the establishment of DGRs
Ancillary funds are often known popularly as ‘gift finds’, ‘community foundations’ or ‘donor advised funds’
Attestation or attestation clause – a signature clause in a will
Beneficiary – person or organisation benefiting under a will
Bequest – gift of an identifiable asset (not money) to person/organisation in will. However, the terms bequest (not money) and legacy (money) are often used interchangeably in general usage.
Blended family – a family formed by a combination of two or more families following remarriage(s) after divorce
Child – in estate law includes an adopted child or step-child
Codicil – a properly executed change or addition to an existing will
Collaborative law – a process of alternative dispute resolution which does not involve a third party mediator. The parties settle as between themselves via their lawyers. The lawyers are precluded from taking the case on to a court hearing
Common law jurisdiction – a jurisdiction using English common law as its basic legal system (e.g. Australia, New Zealand, England and Wales, Canada (except for Quebec), and the United States (except for Louisiana)
Community foundation – see ancillary fund
Contingent bequest – gift of an asset dependent upon an event occurring
Deductible gift recipient (DGR) — a DGR is an entity that is entitled to receive income tax deductible gifts. All DGRs are endorsed by the Australian Taxation Office
De facto spouse – a person of the opposite sex living in a domestic relationship of at least 2 years duration. In some states, the legal definition which embraces a de facto partner can refer to same sex partners
Devise – a gift or real property in a will
Discretionary jurisdiction – a legal jurisdiction which allows judges to make the decisions on essential matters based on the particular facts of a case
Disentitling conduct – conduct which disentitles an applicant from family provision
Donor advised fund – see ancillary fund
Estate – the totality of the property which the deceased owned or had some interest in at the time of death
Estates in fee simple – legal term denoting real estate
Equitable doctrine of undue influence – a doctrine in equity which provides that a person acting under undue influence (that is, whose free will is overborne by someone else) will be able to seek redress. This is not the same as undue influence in will cases, though some argue that it should be
Equity – a part of the English law system, based on principles of fairness, originally separate from common law, but now part of the overall system used in Australia and in other common law countries
Execution – the formal will-making process by signature and witnessing
Executor (m)/executrix (f) – a person appointed by a will-maker to ensure that the intentions in a will are carried out. It is no longer essential to differentiate these terms on the basis of gender. However, judges still often do so in judgements
Family provision – term used in Australia and New Zealand for provision made for family members in a will
Family provision application – an application to a state Supreme Court for provision or further provision from an estate
Family protection – term used in New Zealand for family provision; alternative term used is testator’s family maintenance
Forced share – a fixed share of an estate left to a family member
Forfeiture – the loss of the right to an inheritance by egregious conduct e.g. killing the testator
Gift fund – see ancillary fund
Grant or Grant of representation – the grant of probate or letters of administration
Holograph will – a will written in the will-maker’s own handwriting
Incorporation by reference – the incorporation of other documents into a will, especially a document setting our written instructions for a will
Insane delusion – a false delusion held by a will-maker while suffering a mental illness
Inter vivos – while alive
Interlineation – an alteration to a will which is written between the lines of the existing will (see codicil)
Intestate – Dying without leaving a will, or leaving an invalid will, so that the property of the estate passes by the laws of succession rather than by the direction of the deceased
Joint will – a single will of more than two persons (usually applies between spouses)
Legacy – a gift of money to a person/organisation in will
Letters of administration – a document giving an administrator the right to deal with a will
Life interest – a lifetime gift, such as giving someone the right to live in a property until that person’s death. On the death of the person given the life interest, the asset or capital is distributed according to the will
Lucid interval – an interval of time when a person suffering insane delusions may make a valid will
Mediation – the process of settlement of a family provision claim by a third party mediator
Moral duty – the court-established moral claim of a will-maker’s spouse, children and dependants to provision from the will-maker’s estate
Mutual wills – wills which leave assets to each person in the same way (commonly applies between spouses)
Notional estate – assets which are returned to the estate of the deceased after death because they should not have been disposed of before death. This increases the estate for distribution (currently applies only in New South Wales)
Pecuniary legacy – fixed sum of money expressed as a gift in a will
Personal representative – a general term for a person whose duty it is to administer an estate. A personal representative can be an executor, an administrator, or a public official such as the Public Trustee
Prescribed Private Fund – a tax effective vehicle for placing money, property or benefits in a fund for charitable giving purposes
Probate – the granting of the right to administer a will
Republishing of a will – the re-execution of a prior will
Residuary legacy – remainder of your (money) estate left as a legacy after bequests and specific legacies have been distributed and all debts cleared
Residue of estate – possessions, property and money remaining after all debts are settled and all gifts are distributed in accordance with the will
Reversionary legacy – a legacy consisting of the assets or money left after a life interest has been fulfilled
Revival of a will – the revival of a revoked will
Revocation of a will – the cancelling of a will by a specified happening e.g. by making a new will
Specific bequest – the gift of an identifiable asset such as jewellery or furniture
Spouse – a legally married husband or wife
Substantial compliance – a principle which allows courts to admit wills to probate even if they do not strictly comply with the succession law of a state. The rule applied is one of testamentary intention
Succession law – the law relating to wills and estates
Testate – dying having made a will
Testamentary – referring to a will
Testamentary capacity – the capacity of a person to make a valid will. The test applied is one of sound mind, memory and understanding
Testation – the statements of intent in a will
Testator (m) /testatrix (f) – person who makes a will. It is no longer essential to differentiate these terms on the basis of gender. However, judges still often do so in judgements.
Testator’s family maintenance – alternative (older) term for family provision
Undue influence – influence amounting to coercion placed on a will-maker, which will invalidate a will
Will – a legal document expressing the intentions of a person for the distribution of their assets after death
Will-maker – a plain English term now often used instead of testator or testatrix
Witness – a person who is present at the signing of a will by the will-maker