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Glossary – Will Disputes & Family Provision Claims In NSW

This page provides definitions for common terms used within the area of Family Provision Application
Glossary – Will Dispute & Family Provision
Key Terms
  • Administrator – Person named by the Court to represent a probate estate when there is no will or if the will did not nominate or name an executor. It will usually be the closest blood relative.
  • Affidavit – A legal document that the law requires the person signing the document to have it witnessed by a Solicitor or Authorised person.
  • Assets – Property, items and goods that you own.
  • Attest – The process of signing a Will in the presence of witnesses who also sign. It establishes a valid will and the execution of that will.
  • Bankruptcy – The legal status of a person or corporation that is unable to repay its debts which it owes to others.
  • Beneficiary – A person who is entitled to benefit from a will or a trust.
  • Bequest – The process of gifting personal property in a will.
  • Caveat – A lodged interest in another person’s property which does not let that person dispose of the asset until the caveat is withdrawn.
  • Child – A biological child of a person which also includes adopted and a child born outside of marriage.
  • Codicil – Any document which has the legal effect of adding to or amending the terms of an existing Will representing that alteration which the individual seeks on their will.
  • Consent order – Agreed terms between two parties who have proposed terms which have been signed and filed in Court. Consent Orders make up most settlements in Family Provision matters as both parties have agreed on the terms of the settlement.
  • Counsel – Refers to a Barrister whose services have been obtained and they are instructing on the matter.
  • Creditor – A person or business who is owed money by another person or entity.
  • De Facto Relationship – A relationship where there is a commitment to a common, continuous and lasting domestic relationship between a man and a woman where it is similar to a marriage but no lawful marriage has taken place.
  • Deceased – An individual who has passed away.
  • Estate – Assets and liabilities left by an individual at the time of their death. These items make up the deceased estate when the will is challenged by an eligible person. The Court will make the estate known to each party, however, there are instances where expert evidence is required to value the estate of the deceased.
  • Estate Planning – A process of organising a person’s assets, circumstances and personal affairs in a way that achieves, both during life and at death, the result that the person wishes to achieve.
  • Executor – Person named in the will to take legal and financial responsibility to ensure that the wishes of the deceased are carried out according to their will. There can be more than one executor.
  • Family Provision – Some people can seek from the Court a change to what a person receives – either a share when none has been given, or a greater share of an estate after the death of a person under these laws.
  • Gift – The provision of an asset under a Will.
  • Indemnify – Protecting someone else or providing protection against any loss that is suffered.
  • Intestate – Refers to an individual who passes away without a will.
  • Joint Tenants – A form of ownership. If you own property as a Joint Tenant you must own equally with the other joint tenant or joint tenants. When a Joint Tenant dies, that person’s share of the property is not a Willable Asset because it passes by survivorship to the surviving joint tenant or joint tenants.
  • Letter of Administration – An order of the Supreme Court which grants the authority to an Administrator to administer an estate. Letters of Administration may be granted:
    • If a person dies intestate;
    • If there are Willable Assets that the Will has omitted to dispose of completely;
    • If a person dies with an invalid Will; and
    • If there is no available Executor of a Will
  • Life Estate/Life Interest – When a person is not left an asset completely, but that person is able to receive the rent from that asset, occupy or use that asset, or receive the income that arises from the ownership of that asset, for the period of their life, they have a life estate in that asset.
  • Mediation – A form of alternate dispute resolution by way of resolving disputes with two or more parties whereby a settlement is trying to be negotiated in front a mutual unbiased individual. Depending on the value of the estate will depend on the type and mode of mediation that is most applicable to your situation.
  • Minor – An individual who is under 18 years old and is not capable of making their own decisions without the help of an adult.
  • Notional estate – Property that is legally recognised but not placed within the deceased’s estate such as superannuation.
  • Power of attorney – The legal authority given to a representative to deal with matters as required on behalf of the person who appointed them.
  • Probate/Administration – It is the distribution of the estate during probate and distribution is supervised by the Court. This is the Order made by the Court granting Probate to the Executors. It is the authority which comes from the Court Order that allows the Executor to undertake the Estate Administration.
  • Spouse – Partner in a relationship. It is usually a husband or wife. However, do you changes in De Facto Relationships and same sex marriage a spouse may not necessary need to be married.
  • Statutory declaration – A written declaration of trust, which is usually sworn by a solicitor or a justice of the peace.
  • Testate – Refers to an individual who passes away with a valid will in place. A valid will requires specific criteria.
  • Testamentary Discretionary Trust – A Testamentary Trust that gives powers to a Trustee in the form of discretions about when, how and to whom to pay capital or income of the Trust to a Beneficiary.
  • Tenants in Common – If you own property as a Tenant in Common it may be that you own an equal share with the other owner/s or you may own an unequal share. On your death your share is a Willable Asset it does not go by survivorship to the other owner/s.
  • Trust – Refers to an entity who holds assets for the benefit of another entity or person under an agreement. A legal device used by an individual to give a trustee an asset to protect and look after for the benefit of another person.
  • Undertaking – A promise to do something or refrain from doing something that is legally binding.
  • Will – A written document from an individual outlining instructions on how they want their assets distributed after they pass away. The importance of a will cannot be understated as an individual may challenge the validity of that will if it is deemed that the will was constructed in such a manner that the Court will not constitute as valid.
  • Witness – A person who acknowledges, by their signature to a document, that they have been present when another person has signed that document. By their signature they are confirming that the other person signed in their presence.