Glossary

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A glossary of various words and phrases relevant to succession law

(Aiming to explain with minimal legalese.)
Ad colligenda bona – Latin phrase which describes a person to whom the court has made a limited or temporary grant of letters of administration for the purpose of collecting the property or part of the property of a deceased person where that property is of a perishable or precarious nature or where a regular administration cannot be granted at once.  The function of this type of grant is to protect the asset from wasting; to enable an administration of such an asset, because if not dealt with it may deteriorate or diminish in value before an application for a grant of probate or letters of administration can be made in a timely and orderly way.

Ademption – Latin origin meaning taking away. In succession law if a gift specified in a will doesn’t exist when the will-maker dies, the person named to receive it gets nothing because the gift has been taken away or in other words, taken out of the will.

Administrator cta – cta is the short form of the Latin phrase cum testamento annexo.  It means  ‘with the will annexed’.  In situations where the will is incomplete, for example it maybe that no executor was named, the appointed executor has since become incapacitated, or does not wish to act as executor, an application may be made to the Probate Court to appoint someone else.  If the Probate Court approves, it grants what is called ‘letters of administration with the will annexed’, sometimes written as ‘Letters of Administration cta’.  The Probate Court is a specialist division of the Supreme Court, in each state and territory, and usually has its own registry office.

Advanced health directive – also known as an advance care directive, living will and similar expressions.  These documents are about recording individual preferences ahead of unforseen events such as an accident or terminal illness which may impair decision making capacity regarding treatment and end of life care.

Affidavit – a sworn written statement, that is a written statement made on oath by a person setting out the facts relevant to their case, and which becomes the evidence they rely on in  court proceedings.  It supports the issues in dispute. 

An affidavit can provide particulars of inquiries and investigations. The person making it (called a deponent) must swear or affirm that everything said in it is true before a person authorised by law to administer oaths.  The word affidavit originated from Latin, meaning testimonium, evidence, testimony, proof.

Affidavit in support – when an affidavit is used to support an application to a court for orders of some kind.    

Affinity, relationship of – a related by marriage.

Aka – an abbreviation of ‘also known as’.  Some people may be known more by a nickname or some other name than by the official one on their birth certificate.  It is a good idea for those people to state this in addition to their proper name, when making their will.

Alias – see aka above.

Ambulatory – often used in referring to the nature of wills, because a will may be changed or cancelled at any time up until the willmaker dies, it does not have legal effect or force until the willmaker’s death.

Annex, annexe – to attach, add or append.  For example in the Probate Registry of the Supreme Court of NSW documents are required to be attached by stapling together in the top left hand corner.

ATF – ‘as trustee for’.

Attest and attestation – to bear witness to the genuineness or authenticity of a document by signing as witness, to authenticate a document.

Attesting witness – A person who sees the will-maker sign his or her will document, and then signs the same document themselves as proof that it was signed in their presence. Having done this, they can then declare or attest that they witnessed the will-maker sign their own will.

Attorney – is a person who has been appointed by someone else to make certain decisions in their place.

Bequest – a gift made by will, usually of money, also referred to as a legacy, usually a gift of personalty.  The use of the word ‘bequest’ is diminishing in contemporary practice, as is the word ‘devise’ which usually refers to a gift of realty (real property).

Bona vacantia – Latin term meaning there is no owner for the property.  This situation arises when someone dies without a will, and there is no-one in the class of persons as defined by the law, who can take the deceased’s property.   When this happens, the law provides for the respective state or territory government to be entitled to take the deceased estate’s property.

Codicil –  an additional document used to make a minor change to the terms of an existing will.  A codicil must be signed in the same way as a will to be valid.  Read more about codicils here.

Co-executors – when more than one person has been appointed by a willmaker to administer their estate.

Commorientes  – Latin term referring to when people all die together at the same time, and it is uncertain as to who died first.

Consanguinity – of Latin origin meaning ‘shared blood’ or blood relationships, people who have descended from a common ancestor, the same bloodl line.  Different to a relationship of affinity, which is being related to someone by marriage.

Contingent  – in relation to gifts made by a will.  Means that a gift is subject to some condition being met before the item can be given.  For example a child beneficiary might have to reach a certain age before receiving a gift.  Until that time it is held on trust for them by the trustees named in the will.

c.t.a. or ctacum testamento annexo, a Latin term meaning “with the will annexed”, see Administrator cta

Deceased estate – all the property (both real estate and personal property) a person owns in their sole name when they die.

Devise – to give real estate (real property) by will, a gift of real estate.

Devolves, devolution – the passing of rights, property from one person to another on the occurrence of an event, for example death.

Dispensing power – in the law of succession it is the power given to a court under an act of parliament to dispense with the formalities required by law to make a valid will.  This is to permit a document which supposedly expresses the deceased person’s testamentary intentions, but which for some reason they hadn’t signed, and witnessed, according to law.
Disposition – when a person gives something away they own in their own name to someone else for their benefit, with the intention that they keep it.

Donatio mortis causa – of Latin origin meaning a gift in contemplation of death.

Enduring power of attorney – a document in a form set down by law (see the Power of Attorney Act in each state and territory) which allows a person to name someone else to act on their behalf in regard to their finances and property, should they become incapacitated.

Estate – a person’s property, including real estate and personal items, see Deceased estate.

Estate planning – making arrangements for what is to happen to a person’s property, personal and business affairs should they become incapacitated and when they die.  Usually a term applying to people with large, complex estates, high net worth individuals or business owners.  Estate planning involves a collaborative process between what a persons wants, their wishes and advice from their professional advisers such as lawyers, accountants and financial advisers, in formulating an overall plan.  A will is an important central part of the estate plan.

Estate plan – document recording details of all your assets you own in your name personally as well as those in which you have some control over, or have a beneficial interest in.

Execute – shortform lawyer language meaning to follow all the legal formalities as the law requires in a particular situation to make the document legally valid and operative to take it into effect. Depending on the context it may be only a signature is required, but not in others.  For example someone executing their will means both signing and declaring it is their last will in the presence of two witnesses.

Executor – a person appointed by will to manage, administer and finalise a deceased estate in accordance with the terms of the will. The executor is also responsible for making arrangements to dispose of the body. An executor maybe one or more individual persons, see co-executors, or a trustee corporation or public trustee permitted to offer trustee services.

Executor de son tort – meaning ‘of his/her own wrong’.  Refers to when a person, who is not named in the will as executor, nor appointed as an administrator, takes it upon themselves to carry out executorial and administrative functions in regard to a deceased estate.  In other words they in effect take on the office of executor/administrator by interfering with the deceased’s assets without having authority to do so.  The person who does this does not have the proper legal authority, and so are liable to account to the beneficiaries and creditors of the deceased estate.

Ex-nuptial child (or an illegitimate child)- is a child born outside marriage, when the parents were not married.

Family arrangement – is an agreement which sets out how property in the family is to be distributed.

Financial statements – recording all  financial transactions during the period of administering the deceased’s estate must be kept by the executor/s.  When the administration has been completed the executor/s then provide each beneficiary with a copy of the financial statements.

Forced succession – in some countries the legal system prescribes who in the family will inherit the property and in what proportions so that the will-maker has little or no choice in who will inherit their property.

Gift over terminology describing provision in a will for another person or persons to receive a gift if the first person has died.

Give, devise and bequeath – in modern will drafting the use of the single word ‘give’ is preferred over this phrase or “devise and bequeath”.  See the About the plain language series on “Give, devise and bequeath”, New South Wales Law Society Journal, May 2014 p. 31.

Grant of Probate – see Probate.

Hereditament – Latin origin meaning inheritance.

Holograph will – when a person hand writes their instructions for what they want to happen when they die.

Instrument – ordinarily a tool or device used to perform some task.  So it is in law;  the tool or instrument in the legal context is a formal legal document setting out the intentions, rights, obligations and liabilities between the people involved (the parties), to achieve the performance of something, or not do something as the case may be.  There must be strict adherence to the required technical formalities for signing and execution in order for the document to be authorised at law and effective as intended. Examples of formal legal instruments are deeds, agreements, wills, guarantees. An Act of Parliament may be referred to as an instrument.

Inter vivos – between living persons, someone transfers or gives property to another person while both are alive, such as a parent giving money or other property to their children.  Trusts established during a person’s lifetime are often referred to as being inter vivos.

Intestate – when a person dies without having made a valid will according to law, or if they did, for some reason it may not be legally valid, either in whole or in part so it does not completely dispose of all of their property. They are said to have died intestate.

Joint tenancy – a way of owning property with another person. If one dies the property automatically passes to the other by the operation of law, the survivor having a ‘right of survivorship’.  Property held by joint tenants passes outside of a will.  Typically a husband and wife own the family home as joint tenants. However when the sole survivor dies, the property will pass according to that person’s will, or if no will, in line with the statutory rules on intestacy.

Lapse – when a beneficiary dies before the testator.

Legacy – a gift of personal property for example money or personal items such as jewellery to a person.  The person to receive the gift and benefit from it (the beneficiary) is named in the will. This person or beneficiary may also be referred to as the legatee.

Lien – is a type of right to hold something belonging to another person as security for the payment of a debt.  Used in the context of law practice for example where a lawyer may claim a lien over documents until legal fees are paid.

Linear descendant, lineal descent – refers to a person’s blood relatives in a direct line of descent – grandparent, parent, child, grandchild.  By contrast a collateral descent refers to a blood relationship connecting those with a common ancestor but along the lines of sibling relationships – of a brother, sister, aunt or uncle, brother to brother, cousin to cousin, aunt and nephew or niece.

Minor – a person under 18 years old.

Next of kin – generally understood to be the person or persons closest to you, and whom you would want contacted in an emergency.  In succession law there is no specific legal definition.  Succession statutes can refer to spouses/partners separately from relations by blood, for example father, mother, sister, brother, children.  The law allows for people to specify in their will who they regard as their ‘next of kin’, providing they use clear and appropriate language.  When a deceased has not left a will, there is an order prescribed by legislation as to who takes their estate, which is spouse/partner and family based.

Object – a legal term used in trusts law.  An object of a trust is a beneficiary of that trust.  In wills where a gift is made to a particular group or class of people, an object means someone from that goup.  For example the group might be described in a will as ‘my children’ or ‘my nieces and nephews’.

Out of wedlock – or ex-nuptial, being the term used nowadays to refer to the situation where a child is born to parents who are not married. The child is said to have been born out of wedlock, or is an ex-nuptial child.

Originating process – a document which starts legal proceedings in a court.

Partial intestacy – when a will does not effectively dispose of all of the deceased’s property, or the will is worded in a way so that a part of the estate is not dealt with effectively.

Pecuniary
– relating to money.

Precatory words – words used to express a wish or a hope.

Primogeniture – first-born, a first born’s right to inherit.

Propound – to propose or put forward a document for consideration and acceptance by the court as a valid will, as being the last will and testament of the deceased, when applying to the court for a grant of probate.  The person applying for probate of a will is said to be the propounder of the will, or they seek to propound the will.  Usually this person is the executor named in the will.

Probate – a process by which the will or a document alleged to be the will of a deceased person, is proven to be valid according to law.  A Grant of Probate is an official document certified and issued by the Supreme Court as evidence that the Court has recognised and confirmed the authority of the person/s named as executor/s to go ahead and deal with the deceased estate according to the deceased’s will, and distribute their assets and property, both real and personal.

Public Trustee – a statutory authority or government office.  Established by an Act of Parliament a Public Trustee exists to provide trustee services, will services, act as executors, as administrator for intestate estates, financial management services and powers of attorney among others.  Each state and territory have their own Public Trustee.

Realty – real estate

Residue (of a deceased estate) or Residuary Estate – is all property that is left after debts have been paid and gifts specified in the will have been distributed.  Beneficiaries who take from the residue maybe referred to as the residuary beneficiaries.
If no will was left, then the residuary estate or residue is what is available for distribution after payment of the deceased’s debts.

Revocation (of a will) –  is to make a will ineffective, to cancel it.

Right of survivorship – this is a legal right which attaches to the joint ownership of property, whether it is real property (land) or personal property.  It is a feature of joint tenancy.  If two people own property as joint tenants and one dies, the surviving owner automatically owns the whole property. Information on the different ways to own property with others may be read here. Ownership and disposing of property by will can be read here.     

Solemn Form – sometimes a grant of probate can’t be made because there is some issue or dispute about the will. Once resolved by the Probate Court the Court may then issue what is called a grant of probate in solemn form.  These words indicate that court proceedings had taken place. 

Summons – is a prescribed court form used when someone wants to initiate court proceedings so as to bring an issue before the court for resolution.  The summons must be brought to the attention of all other people who are affected, that is, they must each be served with a copy of it once it has been filed in court.  In succession law for example, a summons is how an executor can bring a particular issue needing judicial determination before the court.

Survivorship – see right of survivorship

Tenancy in common or tennants in common – a type of property ownership where two or more people own a defined, undivided share (for example one quarter, three quarters) in the same property.  Although they possess the whole property in common, they can individually and independently of each other dispose of their share during their lifetime or through their will to whomever they choose.  Contrast to joint tenancy.

Tenant – a person (may include a company) who holds or possesses property.

Testament – Latin, meaning a will. It is the formal written document produced when a person records their intentions as to the disposal or transfer of their personal property for when they pass away.  Its operation is triggered only on the event of death. In modern will writing the phrase “Last will and testament” has been reduced to ‘last will’.

Testamentary- related to a will (see Testament); how a person wants their personal property dealt with on the event of their death. 

Testamentary intention – refers to a person’s strong desire to prepare a document which they intend to operate as their final record on what is to be done with their property when they die.  Their intention is to do this, that is, make a will, freely, without influence, and in full knowledge of its effect.

Testamentary disposition – the disposal or transfer of property on death.

Testamentary expenses – expenses made in the process of finalising a deceased estate such as funeral costs, applying for probate, professional advice, protecting assets of the deceased and paying the executor/s commission where provided for or if granted.

Testator – a person who makes a will.  Testator refers to a male person making a will and testatrix for a female. The term testator is now used to include references to both male and female.

Testatrix – female form of testator, a female who makes a will.

Transmission – to transfer, pass on or hand down property to successors on death by will or the rules of intestacy.  In NSW the word transmission is defined in section 3 of the Real Property Act 1900 as:

The acquirement of title to or interest in land consequent on the death, will, intestacy or bankruptcy of a proprietor.

Trustee – a person (or company) appointed to hold property on trust for others, the beneficiaries subject to the terms set out in a will, as a testamentary trust.  Executors are often appointed to act as trustees where a trustee role is required following administration of the estate.  However professional advisers or their firms may also be appointed depending on the circumstances.

Will – is the officially recognised legal record of a person’s intentions as to what they want to have happen to their property when they die. Central to planning ahead it is often part of a wider estate plan.

Will-maker – person who makes a will.

Succession and inheritance laws are state and territory based.  But to learn more on terms used in legal proceedings, court processes generally, see the Federal Court of Australia’s online Glossary of legal terms here. And the Federal Circuit Court of Australia’s  list of the meanings of legal words commonly used in court proceedings here.

Last updated 15 March 2018
BHS Legal