Glossary

 

Ademption

The rule of ademption specifies that, when the subject matter of a specific gift to someone is no longer in the will-maker’s estate at the date of death (because it has been sold or given away, for example), the beneficiary will receive nothing. In this case, the gift is said to have been adeemed.

Administrator

A person appointed by the court under letters of administration to administer a deceased estate which has no executor. This may be because there is no will, the will does not appoint an executor, or a named executor is unwilling or unable to act.

Bona vacantia

Property that has no owner. If a person dies intestate (leaving property that is not disposed of by a will) and is not survived by any next of kin, the intestate estate belongs to the Crown as bona vacantia. See also intestacy.

Collateral relatives

Blood relatives who are related by common ancestry but not through a direct line of descent. For example, the relationship between siblings is collateral. See also lineal relatives.

Disbursement 

An expense paid by a solicitor on behalf of a client, for which reimbursement will be sought. Disbursements are distinct from solicitors’ professional fees and court costs, and might include, for example, the cost of medical reports or a barrister’s fees.

Executor 

The person appointed by the will to administer the estate.

Grant of letters of administration

A grant of letters of administration is made where there is no will, or where there is a will but no executor is available for some reason. It confers upon a court-appointed administrator the authority to administer the estate.

Grant of probate

A grant of probate certifies that the will is the last and valid will of the deceased person and confirms the authority of the executor named in the will to administer the estate.

Grant of representation

A grant, by the Supreme Court, of probate or of letters of administration.

Hotchpot

The requirement for certain benefits received by a deceased person’s child during the deceased person’s lifetime to be taken into account when determining that child’s share on intestacy.

Informal administration

Administration of estate assets without a grant of representation.

Inter vivos

Refers to something that occurs during life. In the succession law context, it is most often used to distinguish between gifts or transactions during a person’s life and those that occur in accordance with their will.

Intestacy

Occurs when a person dies without having made a valid will, or where their will fails to effectively dispose of all of their property. Intestacy can be partial, where only some of the deceased person’s property is effectively disposed of by will, or total, where none of the deceased person’s property is effectively disposed of by will.

Issue

A person’s children, grandchildren, great-grandchildren and other direct descendants down this line.

Joint tenancy

Common ownership of property when all co-owners (or co-tenants) together own the whole piece of property, each having an undivided share. Property that is owned jointly passes to the surviving co-owner or co-owners on the death of one of the co-owners and does not become part of the deceased person’s estate. See also survivorship and tenancy in common.

Lineal relatives

Blood relatives who are related by a direct line of ancestry, either ancestors or descendants. For example, the parent to child relationship is lineal. See also collateral relatives.

Marshalling

The process of adjusting beneficiaries’ benefits, after the payment of the estate’s debts, to ensure the distribution accords with the order established under the will or by statute.

Next of kin

A person’s closest blood relatives. A deceased person’s estate is distributed to their surviving next of kin on intestacy.

Party and party costs

All costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party. The amount includes the necessary legal costs of prosecuting or defending a case, as calculated by using a standard scale of fees (rather than the fees that were actually charged). A party awarded party and party costs recovers less from the other side than they would if awarded solicitor and client costs.

Real property

Land and interests in land, otherwise known as real estate.

Registrar of Probates

An officer of the Supreme Court with both judicial and administrative functions. The Registrar of Probates is appointed under the Supreme Court Act 1986 (Vic) and may exercise the power of the Court in making grants of representation.

Residuary estate

The remainder of the estate after debts and liabilities are paid, and specific gifts and legacies are distributed.

Solicitor and client costs 

All costs reasonably incurred and of reasonable amount. They are likely to cover almost all the legal fees that the party was actually charged. A party awarded solicitor and client costs recovers more from the other side than they would if awarded party and party costs.

Statutory will

A will authorised by the court for a person who is alive but lacks the testamentary capacity required to make a valid will for themselves.

Survivorship

A right in relation to property held by two or more people as joint tenants. Where a co-owner (or co-tenant) dies, their share in the property passes to the surviving co-owner(s). It cannot be given by will. See also joint tenancy.

Tenancy in common

A type of co-ownership where multiple parties own distinct interests in the same piece of property. The share owned by a tenant in common forms part of their estate. See also joint tenancy.

Testamentary capacity

The mental capacity required to make a valid will. To have testamentary capacity, a person must be of sound mind, memory and understanding, and must understand the nature and effect of making a will.

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Date Published: 
Wednesday, January 30, 2013 - 17:00

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