Jargon Buster – Making a Will

There are lots of legal terms associated with making a Will. To try and make things a little clearer, we’ve created this listing for you to look up an terms you’re not sure about:

 

Abatement   A pro rata reduction among creditors (or Legatees) when the funds available are not sufficient to satisfy the creditors (or the Legatees).

 

Ad colligenda bona defuncti   A grant of administration for the preservation of property made in order to protect the assets during a delay in the application for a grant.

 

Ademption   The sale or other disposition by the Testator, during his or her lifetime, of the subject-matter of a specific legacy.

 

Ad litem   A grant of administration for the purpose of an action, in order that the Estate may be represented in the action.

 

Administration   The process of dealing with the Estate of a deceased person, Eg collecting the assets, paying the debts and taxes and distributing the balance of the Estate amongst the persons entitled.

 

Administrator   A person appointed by the court to administer the Estate of an intestate, or of a testator when an executor has not been appointed or the named executor will not or cannot act.

 

Advancement    A payment or a distribution to a beneficiary of a part of his/her share of capital before the time fixed for his/her attainment of an absolute interest in possession.

 

Aggregation   The adding together of all property (with certain exceptions) which passes, or is deemed to pass, on the death of an individual, in order to determine the rate of Inheritance Tax.

 

Ambulatory (of a Will)    The quality of revocability at any time before death.

 

Ancillary Probate   A subsidiary grant of probate given in respect of a grant of probate obtained abroad, giving powers of administration of the foreign executor over movable property in the United Kingdom.

 

Animus revocandi   The full and free intention to revoke a Will.

 

Animus testandi    The full and free intention to make a Will.

 

Appropriation   The application of property, Eg for or towards the satisfaction of a legacy or annuity.

 

Attestation clause   A statement made at the end of the Will above the signatures of the witnesses, which declares that the Will has been duly signed in the presence of the witnesses, who attest the Will and sign it in the presence of the testator and of each other.

 

Authorized securities Those securities in which trustees are permitted to invest trust monies by the Trustee Act 1925, or by other statute, and any other securities which are expressly authorized by the Will which created the trust.

 

Bequest    Gift by Will of pure personalty, ie legacy.

 

Bona vacantia   Ownerless property which passes to the Crown or the Duchy of Cornwall or of Lancaster.

 

Breach of trust   Any act carried out, in relation to a trust, by a trustee which he or she is not entitled to do, either by the terms of the trust, or by the rules of equity or by statute, or the omission to do any act that should have been carried out in relation to the trust.

 

Caveat    A notice in writing to the Registrar warning him or her not to issue a grant of probate without giving notice to the individual lodging the caveat (the caveator) or his/her solicitor.

 

Cessate grant    A supplementary grant of administration made after a grant limited in duration has expired by the effluxion of the time for which it was granted.

 

Cesser of interest    The determination of an interest, which thereupon passes to another.

 

Chattels   Personal property, chattels personal are movable things and chattels real are leasehold interest in land.

 

Chose in action    Property consisting of a right to sue in the courts to enforce a claim.

 

Chose in possession    Property consisting of rights over things actually in possession.

 

Citation    A notice issued by an executor applying for probate in solemn form calling upon every person who could possibly benefit from the invalidation of the Will, to appear and show cause, if any exist, why probate should not be granted.

 

Codicil  A document executed by a testator subsequent to a Will and or referring to the Will with the object of adding to, cancelling or altering, the provisions of the Will.

 

Commorientes   Persons who die together – at the same time.

 

Contingent legacy   A legacy which transfers no interest at all unless a specified but uncertain event happens.

 

Contingent Will  A Will which is to come into operation only if a specified but uncertain event happens.

 

Cum div   A quotation relating to stocks or shares, indicating that the price includes all dividends or interest

 

De bonis non administratis   A grant of administration over the property not yet administered.

 

Demonstrative legacy   A pecuniary legacy payable out of a specific fund.

 

Dependent relative revocation   The ineffective revocation of a Will under a misapprehension as to the effect of the revocation or destruction.

 

Devastavit    A breach of trust involving loss to the Estate.

 

Devise   A gift by Will of real or leasehold property.

 

Devisee    The person entitled to a devise.

 

Devolution   The passing of property by process of law.

 

Donatio mortis causa   A gift of pure personalty made by a person who is expecting to die, on the understanding that if the death does not occur, the gift is to be void.

 

Double probate    Where some or several executors to a Will do not prove, they may obtain a grant of probate later, such a grant being termed a double probate.

 

Durante absentia    A grant of administration made during the absence abroad of the legal personal representative, the grant operating until the personal representative returns within the jurisdiction of the High Court.

 

Durante dementia   A grant of administration made during the temporary insanity of the sole legal personal representative.

 

Durante minore aetate    A grant of administration during the minority of the sole legal personal representative.

 

Equitable apportionment    A rule of equity deemed to carry out the unexpressed intention of the testator in order to give effect to and protect the respective rights of the life tenant and the remainderman.

 

Estate   A term meaning the property of the deceased person to which he/she is beneficially entitled.

 

Excepted estates   Certain small non-complicated estates in respect of which no formal Inland Revenue account need be submitted for IHT purposes.

 

Ex div   A quotation in respect of stocks or shares, indicating that the price does not include any dividend or interest accrued to date.

 

Executed trust    A trust in which the settlor has given detailed provisions of the trusts created by the instrument.

 

Executor   A person appointed by a Will to administer the Estate of a deceased person.

 

Executor according to the tenor    A person nominated by implication in a Will to act as executor, eg where a person is requested to perform acts which are normally performed by an executor.

 

Executor de son tort    A person who interferes with the property of a deceased person by performing duties which are normally those of a personal representative.

 

Executor’s assent  Any act, express or implied, on the part of an executor which shows his/her intention to part with his/her interest in the legacy or devise in favour of the legatee or devisee.

 

Executor’s oath   An affidavit sworn by an executor, declaring among other things, that he/she believes the Will to be the true last Will of the deceased and that he/she will carry out all the duties of administration.

 

Executor trust   A trust which the settlor has not given detailed provisions of the trust but has left it to the trustees or beneficiaries or the court to interpret his/her broad instructions into detail.

 

General legacy   A legacy which cannot be specifically identified by the personal representative, eg a gift of £200 or a picture (where the testator does not refer to any particular picture).

 

Gift inter vivos    An unconditional gift of property made prior to death.

 

Grant save and except    A grant of probate entitling the executor to administer that part of an Estate not reserved for a second executor to administer.

 

Grant caeterorum    A grant of administration or probate giving powers of administration over the rest of the Estate not covered by other grants.

 

Holograph Will    A Will entirely in the handwriting of the testator.

 

Implied trust    A trust implied from the presumed, but unexpressed, intention of a party.

 

In loco parentis   In the position of a parent.

 

Intestate   A person who has died without making a valid Will.

 

Issue    All lineal descendants of a person.

 

Joint tenancy   Concurrent interest in property where the same interest is held under the same instrument by two or more persons in the same right, with the right of survivorship incidental. Joint tenants have one estate in the whole, not in shares (see Tenancy in common).

 

Lapse    The failure of a legacy or devise owing to the death of the legatee or devisee before the testator, except where the deceased legatee or devisee was a descendant of the testator and left issue of his own which survived the testator.

 

Latent ambiguity    Hidden double meaning.

 

Legacy    A gift of pure personal property by Will. 

 

Marshalling the assets   Arranging the assets in the proper order of application where the Estate is solvent

but insufficient to meet all legacies and devises.

 

Noncupative Will   A Will made orally before witnesses.

 

Partial intestate   A person who has died without wholly disposing of his/her property by Will.

 

Patent ambiguity   Obvious, or unhidden, double meaning.

 

Pendente lite   A grant of administration made while an action is pending regarding the validity of a Will.

 

Per capita   By heads, ie according to the number of beneficiaries.

 

Perpetuity  A limitation which must vest after the utmost period allowed by law.

 

Personal chattels   All household furniture and personal effects, except goods used for business purposes,

money, bank balances or securities for money.

 

Personalty    All movable property, ie furniture, trade stocks, money, private business and share in partnership

and securities and leasehold interests; all property except real property.

 

Per stirpes    By families, ie by representation of a dead claimant by his/her issue taking his/her share.

 

Portion   A gift made by a father or person in loco parentis to one of his children, or to a person to whom he

has placed himself in loco parentis, with the intention of discharging the moral obligation to provide for the child.

 

Power of appointment   An authority given to some person (called the donee of the power) to nominate the

person who shall take certain specified property belonging to the person creating the power (called the donor

of power).

 

Preference    The right of a personal representative (except a creditor/administrator) to pay any one creditor

of a particular class before another of the same class.

 

Probate    The legal recognition of the validity of a Will.

 

Realty   All interests in land other than leasehold interests.

 

Remainderman    The person who takes the capital of an Estate on the death of the life tenant.

 

Residuary devisee    The person who takes the remainder of the real property after the payment of all debts

and legacies charged on such property, and after the satisfaction of all gifts of such property.

 

Residuary legatee    The person who takes the remainder of the personal property after the payment of all debts

and legacies payable threrout.

 

Resulting trust    Trust of which the beneficial interest results or returns to the creator of the trust.

 

Retainer   The right of an executor to retain a debt due to himself in preference to other creditors of equal degree.

 

Reversionary interest   Any right to the ownership of property at a future date.

 

Satisfaction   The gift of a thing in extinguishment of a prior claim.

 

Settlement    An arrangement by which property is held on trust, generally for several beneficiaries in succession, some of them unborn at the time of making the settlement.

 

Specific legacy    A gift of a thing identified by the testator in his/her Will.

 

Statutory trusts  The trust upon which, under section 47 Administration of Estates Act 1925, the residuary Estate

of an intestate is held for the benefit of the class of relatives entitled thereto, until they attain an absolutely

vested interest.

 

Substitutional legacy  A gift of personalty made in lieu of a previous gift, where the testator indicated that it was

not his/her intention that the legatee should take both gifts.

 

Successor    The person entitled to the beneficial interest passing under a devise of freehold or leasehold property.

 

Sui juris    Of full legal capacity.

 

Tenancy in common   Concurrent interests in property where the tenants have several distinct, though undivided, interests in respective parts of the property ( see joint tenancy).

 

Testamentary expenses    The expenses incurred in obtaining probate or letters of administration, paying Inheritance Tax and debts, and realizing the assets.

 

Testator  A person who makes a Will.

 

Trust    A trust is an arrangement by which property is handed over to one or more persons called trustees, or validly declared by the owner to be held by himself as trustee, to be applied for the benefit of some other person, or persons, called beneficiaries, of whom any trustee may be one.

 

Trust Corporation    The Public Trustee or any corporation either appointed by the court in any particular case to be a trustee or entitled to act as a custodian trustee under the Public Trustee Rules 1912.

 

Trustee    The person who holds property on behalf of another person and to whom is committed the administration

of a trust.

 

Trustee securities    Those securities in which trustees are permitted to invest trust moneys by virtue of the provisions of the Trustee Act 1925 ( as amended by the Trustee Investment Act 1961).

 

Vested Legacy    A legacy which transfers an immediate title to the legatee, even though the payment is deferred

to some future date.

 

Warning   A notice entered by an executor at the Principle Probate Registry and served upon a caveator, calling upon him/her to enter an appearance within six days to show cause why probate should not be granted.

 

Will    Any valid declaration of a person’s intentions as to property which he or she can dispose of after his or her death, which he or she requires to be performed after his/her death.

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