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Useful Legal Terms

To assist you we provide the following brief explanation of some of the more common terms used when discussing Wills and Estates.

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

Advance Care
Directive
This is the correct name of a document often
referred to as a ‘living Will’. It contains
instructions to medical practitioners to request
they stop prolonging your life in the event you
become terminally ill, lose your mental
capacity or become permanently unconscious.
This request is not legally binding in NSW.

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Attestation Clause This is the statement at the end of your Will
saying it has been ‘duly executed’ and signed in
the presence of witnesses. Your attesting
witnesses watch you sign and then sign your
Will after you.

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Beneficiaries Beneficiaries are the people who inherit your
estate when you die. There is no limit to the
number of beneficiaries you name.

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Codicil A codicil enables you to add to or amend your
existing Will. It is executed strictly in the same
manner as a Will. It must not include a clause
revoking previous Wills.

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Chattels Personal property that is moveable such as a
T.V. or a painting.

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De facto Used when referring to a common law spouse
as in the de facto wife or the de facto husband.
living together as if married but not legally
married.

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Discretionary trust By this trust arrangement the trustee has full
power to determine which beneficiaries are to
receive their income and capital and at which
time.

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Estate This refers to your assets – property, money
and possessions, including any shared real
estate (other than jointly owned – see below)
Your estate can include property you acquired
after you made your Will.

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Executor or Executrix if female, is the person you
appoint to administer your Will when you die.
Always consult the person (s) you would like to
appoint as your executor (s) to ensure he/she or
they are happy to take on this role before you
make your Will.
What is an Executor’s role?

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Guardian A guardian is chosen by the testator to look after
their children in the event of their death. Again
as with executors also check first with your
proposed guardian. A guardian may also be appointed under the Guardianship Act.

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Intestate Dying without a will.

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Joint Tenants Property co-owned with another person, often
husband and wife. When one joint tenant dies
the other one becomes the owner of the whole
property. This applies regardless of any Will or
intestacy rule. Joint tenants cannot hold unequal
shares in property. (compare tenants in common
below).

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Letters of
Administration
This is the formal document issued by the
Supreme Court where there is no Will. It
confirms the administrator’s authority to
deal with the estate.

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Minor A person who is not yet 18 years of age.

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Nuptial children ‘child’ or ‘children' born of a marriage.

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Probate After you die your executor may need to apply
for Probate. This is an order obtained from the
Supreme Court of NSW stating that the Will is
valid. It confirms the executor’s authority to
administer your estate.
Find out more about Probate

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Residue This is what is left of your estate after pecuniary
legacies, specific gifts, debts and funeral
expenses have been paid out.

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Revocation You can revoke a Will by creating a new Will
which includes a revocation clause, getting
married (unless made in anticipation of your
marriage) or destroying it. Divorce will not
revoke the Will totally as it only affects any
gift to your former spouse and the appointment
of your former spouse as an executor, trustee
or guardian.

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Specific gifts Particular items may be left to specific people,
however caution is required – the item may not
exist later on when you die.

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Spouse This can be husband or wife – care must be
exercised if you are separated or going through
a divorce as your spouse remains your husband
or wife until your receive your Decree Absolute.

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Testator or Testatrix if female, is the Will-maker. Apart
from limited exceptions you must be over the age
of 18 and it is crucial that you are of sound mind
at the time of making your Will.

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Tenants in common Unlike a joint tenancy, if you own property as a
tenant in common you can give away your share
of property in your Will. Each person in the
tenancy in common holds a share of the property
and unequal shares are possible.

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Testamentary trust A testamentary trust can be established under
your Will to appoint a trustee to use property
for the benefit of a beneficiary according to
the terms of your Will. A beneficiary can
challenge the decision –making of the trustee.

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Trustees You can appoint your executors or anyone else as
trustees. Their job is to hold any assets set out
in the Will until the beneficiaries satisfy certain
criteria specified in the Will. Any property
inherited by children must be held in trust until
they reach 18, or older if specified in the Will.

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Will A Will is a legal document you create to name
the people you want to receive the property and
possessions you own at the date of your death. You also appoint your Executor in your Will.
Without a Will your assets would be distributed
according to intestacy rules. No alterations
should be made to the Will after it has been
signed.

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Witnesses When making a Will two witnesses have to
verify the signature of the testator. They both
must be present when you sign your Will and
they too must sign in your presence.

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