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Legal Definitions - CB Wills Perth

Legal Definitions - CB Wills Perth

Sometimes it seems lawyers like to use a bunch of jargon to ‘lock out’ the general public from understanding matters. Hopefully the below list of definitions can help dispel the mystique that can be created by legalese terminology!


If you think there are more questions or definitions missing, please let me know. This is a work in progress!


Administrator.

A person appointed by the Supreme Court exercising its probate jurisdiction. The Administrator is given a grant of Letters of Administration for the purposes of collecting the assets, paying the debts and administering the estate. An Administrator is appointed where there is no Will, but may also be appointed where there is a Will but no Executors.


If there is no Will or the assets are not dealt with in the Will, the Administrator must distribute the assets in accordance with the Intestacy Rules.


If the administration arises as a result of there being no Executors, then the Administrator must distribute the assets in accordance with the Will.


Advance directive

A written document that sets out a person’s wishes about their future medical treatment if they lose the mental capacity to make the decisions themselves. Unlike an enduring guardianship appointment, an advance directive is not legally binding.


Affidavit

A written statement sworn on oath or affirmed before a person with authority to administer it. The person in whose name the document is sworn is the deponent. Affidavits must contain only facts that the deponent can prove. Affidavits are generally required in court proceedings in place of statutory declarations.


Age of Majority.

Eighteen (18) years old. This is the age when a person becomes an adult and is able to exercise legal capacity – that is, have the rights and obligations of an adult. The age of majority used to be twenty-one (21) years old.


Appointor.

A person with powers under a Trust which will include at least the right to hire and fire the Trustees. The Appointor may have other powers and may be like a Protector.


Attest.

The process of signing a Will, in the presence of witnesses who also sign. It establishes the evidence of the fact of execution of the Will by the Willmaker.


Attestation clause

A witnessing clause. The attestation clause states that the witnesses saw the will-maker sign and that they signed in the presence of the will-maker and each other.


Beneficiary.

A person who is given a gift in a Will. Also, in relation to a Testamentary Trust, a person:

  • who has a right subject to conditions to receive a benefit; or
  • who has a mere expectation to be considered for a benefit by the Trustee where the Trustee has a discretion.

Bequest.

The process of gifting Personal Property in a Will. An older term for a gift of Personal Property (i.e. something other than Real Estate) made in a Will. A more modern term is Gift which covers both Bequests and Devises.


Blended Family.

A family consisting of a couple, the children they have had together, and their children from previous relationships. Special considerations should be had when making a Will in such circumstances.


Business Wills.

A Business Will is an agreement that usually takes the form of a buy and sell option. It ensures the smooth transition of the ownership of a business on the event of a death, total and personal disablement or trauma of an owner.


Funding for a buy out in a Business Will is critical, and is commonly achieved by appropriately held insurance policies. It is very important to ensure that expert advice is sought when taking out the policies, so that Capital Gains Tax is not triggered unnecessarily.


Child.

A biological child of a person. The definition usually also includes:

  • a child who has been adopted under an Adoption Act; and
  • a child born outside a marriage relationship.

Some Wills contain special conditions of the word “child” in order to deliberately include or exclude types of children.


Codicil.

Any document which has the legal effect of adding to or amending the terms of an existing Will. The same legal requirements for the Execution of Wills apply to the execution of Codicils.


Coroner

A magistrate or senior clerk of the court who investigates deaths that are sudden or unexpected, or where the cause is unknown. The coroner may hold an inquest to determine the manner and cause of death, and whether there is a prima facie case that a person has committed an offence for which they may be tried in court.


Creditor

A person to whom a debt is owing.


De facto relationship

The relationship between two adults living together as a couple but not married to each other or related by family.


Destitute funeral

A funeral, arranged by the state, of a person without assets, whose next of kin are not available, or are unable or unwilling to make arrangements for a funeral.


Enduring guardianship

A legal appointment under the Guardianship Act in which a person (the appointor) gives one or more people authority to make specific decisions about the appointor’s personal affairs, health care or lifestyle should the appointor lose the mental capacity to make such decisions.


Estate

Assets that belonged to the deceased.


Euthanasia

The practice of deliberately and quickly ending a person’s life either by some act (active euthanasia) or by withholding or withdrawing treatment (passive euthanasia).


Executor

A person appointed in a Will to carry out the provisions of the Will.


Ex-nuptial child

A child born to parents who are not married to each other.


Grant of Probate

See Probate.


Inquest

A hearing held by a coroner into the cause and circumstances of someone’s death.


Intestacy rules

The rules that are used to decide where an estate will go when no will has been made, or where the will does not dispose of all of the estate.

The Administration Act 1903 (WA) sets out rules about how the property is shared out. The rules are complicated and change, depending on:

  • the value of the estate and
  • the type and number of family members the deceased had.

De facto partners of any sex now have inheritance rights under the Administration Act 1903 (WA). You will need to establish your relationship was a de facto relationship. If you lived as a de facto partner with the deceased for at least two years immediately before their death you are now entitled to a share in the estate in certain circumstances. If your partner dies without a Will, you should seek legal advice about your rights.


Intestate

Having died without leaving a will.


Joint tenancy

A form of co-ownership where property is owned by more than one person. In joint tenancy, when one co-owner dies, the property automatically passes to the other co-owner(s) regardless of what the will says. This is the favoured type of ownership for couples. Compare: tenancy in common.


Joint Will

An extremely rare form of Will where two people, in one document, make all of the provisions for both of them about the Willable Assets of both of them. These forms of Wills are more common in European jurisdictions and in places where the law of Wills is based on European laws, for example South Africa. Joint Wills are often confused with Mirror Wills.


Legacy

A gift of personal property.


Legatee

A person who benefits from a legacy.


Letters of administration

Written authority from the court allowing a person to act as administrator of an estate where no will has been left.


Letters of administration with the will annexed

Written authority from the court allowing a person to act as administrator of an estate where a will was left but no executor was appointed, or the sole executor died before the will-maker or renounced probate.


Living will

See advance directive and enduring guardianship.


Mirror Wills

A colloquial expression which refers to two (2) similar Wills, one made by a husband and one made by a wife (or by Partners) where the Wills essentially make the same provisions. Compare with Joint Wills.


Mutual Wills

A form of Will made by two or more people where the people have agreed by Contract or Deed or other binding arrangement to not make changes to the whole of their Will (or part of their Will) without the consent of the other person or people. Their intention is to maintain their Will (or the relevant part of the Will) even after the death of one of them. These forms of Wills are sometimes used in second relationships. These forms of Wills do not defeat proper claims made under Family Provision Laws.


Post-mortem

A medical examination of a body after death. It usually involves a doctor examining the body internally and externally. A post-mortem is sometimes called an autopsy.


Power of attorney

A legal document that gives one or more people the power to act on behalf of another in financial or legal matters.


Prima facie

‘on the face of it’. Prima facie evidence proves a fact or allegation if no other evidence is produced to the contrary.


Probate

A court order by the Supreme Court confirming the validity of a will. It gives the executor permission to deal with the estate.


Public Trustee WA

A government organisation, set up under State legislations to administer estates of deceased people who have made a will with the WA Public Trustee, estates where no will was left, and estates where the executor has renounced responsibility.


Statutory order

The order, according to law, in which estates are distributed when there is no will or a will which does not dispose of all the deceased’s assets. See intestacy rules.


Tenancy in common

A form of co-ownership where property is held in common with others but each has a separate share. The share of a deceased person passes to their beneficiaries and not to surviving co-owners (compare joint tenancy).


Testamentary disposition

A valid will or other document approved by the court, stating how property is to be passed on.


Testate

Having died and left a will.


Testator

A person who has died and left a will.


Trustee

A person who holds property in trust for another person.