Wills & Estates glossary

Ademption

The failure of a specific gift in a will because the asset no longer exists at the testator's death or has been substantially changed in nature.

Example: A car gifted in a will that was sold before death generally adeems.

Administration

The process of collecting estate assets, paying debts, and distributing the residue under a grant of probate or letters of administration.

Advancement

A gift made during the testator's lifetime to a beneficiary that may be taken into account (hotchpot) against their share of the estate.

Affidavit of assets and liabilities

A sworn document filed with a probate application listing the estate's assets and liabilities as at the date of death.

Attestation clause

The clause at the end of a will recording that the testator signed the will in the presence of two witnesses who signed in the presence of the testator and each other.

Beneficiary

A person or entity entitled to receive a gift under a will, a distribution on intestacy, or a benefit from a trust.

Bequest

A gift of personal property made under a will (historically distinguished from a devise of real property).

Caveat

A notice lodged with the Supreme Court probate registry preventing a grant of probate or administration being issued without notice to the caveator.

Codicil

A document that amends, adds to, or partly revokes an existing will. Must be executed with the same formalities as a will.

Contingent gift

A gift that takes effect only if a specified condition is met, such as the beneficiary reaching a particular age.

Devise

A gift of real property made under a will.

Executor

A person appointed by the testator in a will to administer the estate. Derives authority from the will and confirmation by grant of probate.

Family provision claim

A claim by an eligible person for provision out of a deceased estate on the basis that they have been left without adequate provision for their maintenance, education, or advancement.

Gift over

A substitutional gift that takes effect if the primary gift fails, for example if the first-named beneficiary predeceases the testator.

Grant of probate

The order of the Supreme Court confirming the validity of a will and the executor's authority to administer the estate.

Guardian

A person appointed (by will or by the court) to have parental responsibility for a child after the death of the child's parent.

Hotchpot

An accounting rule requiring certain lifetime advances to be brought into account when dividing an estate among beneficiaries.

Informal will

A document that does not comply with formal execution requirements but which the court may nonetheless admit to probate if satisfied it records the deceased's testamentary intentions.

Intestacy

The situation where a person dies without a valid will, or whose will does not dispose of all of their property. Distribution occurs under a statutory intestacy scheme.

Inventory of property

A list of the estate's assets and liabilities filed by the executor or administrator as part of their accounting obligations.

Lapse

The failure of a gift in a will because the beneficiary predeceases the testator, with the gift falling into residue unless a contrary intention appears.

Letters of administration

A grant by the Supreme Court authorising a person to administer the estate of someone who died without a will or without a valid appointment of executor.

Life estate

An interest in property that lasts for the lifetime of a named person, after which the property passes to the remainder beneficiary.

Minor beneficiary

A beneficiary under the age of 18 whose entitlement is typically held on trust until they attain the specified age.

Mutual wills

Wills made by two or more people in pursuance of an agreement that the surviving testator will not revoke their will after the other has died.

Notional estate

Property that, although not owned by the deceased at death, may be designated as estate property in NSW for the purpose of a family provision claim.

Per stirpes

A method of distribution where the descendants of a deceased beneficiary take the share their parent would have received, divided equally among them.

Power of attorney

A formal authority given by one person (the principal) to another (the attorney) to act on their behalf. Ceases on death, when executor authority takes over.

Probate

The court process that confirms the validity of a will and the executor's authority to deal with the estate.

Rectification

The court's power to correct a will that does not carry out the testator's intentions due to a clerical error or failure to understand instructions.

Residuary estate

The portion of the estate remaining after payment of debts, taxes, expenses, and specific gifts.

Revocation

The cancellation of a will, by making a later will, destroying the will with intention to revoke, or by marriage or divorce where statutory rules apply.

Specific gift

A gift of a particular item of property identified in the will, distinguishable from a general or residuary gift.

Statutory legacy

A fixed amount paid to a surviving spouse or partner under an intestacy scheme before the balance of the estate is distributed.

Testamentary capacity

The mental capacity required to make a valid will — understanding the nature of the act, the extent of property, and the claims of potential beneficiaries.

Testamentary trust

A trust created by a will that comes into effect on the testator's death, often used for asset protection or to hold gifts for minor or vulnerable beneficiaries.

Testator

A person who has made a will. A female testator is sometimes referred to as a testatrix, though testator is now used generically.

Trustee

A person or body that holds legal title to property on trust for the benefit of others under the terms of a will or trust instrument.

Undue influence

Pressure exerted on a testator that overbears their free will, rendering a will or gift liable to be set aside.

Will

A document by which a person directs the disposition of their property after death. Must be in writing, signed, and witnessed under the formalities of the relevant succession Act.