Wills & Estates

Monday, October 19, 2015

The laws that determine how an estate will be distributed when there is no will. These rules are contained in the Succession Act 1981.

Word or PhraseDescription
AdministrationThe process of collecting the assets, paying the debts, and distributing the estate in accordance with the will (or, if there is no will, in accordance with the intestacy rules).
Advance Health DirectiveA special form of document that gives directions about a person’s health care wishes.
AHDSee Advance Health Directive.
BDBNSee Binding Death Benefit Nomination.
BeneficiaryA person who is entitled to a portion of an estate or trust.
Binding Death Benefit NominationA direction that obligates the trustee of a superannuation fund to pay superannuation death benefits to a particular person or to the estate.  Not every superannuation fund recognises a BDBN.
Challenging a willSee “Contesting a will”.
CodicilA document that amends a will.
Construction of a willHow a will is construed (interpreted). In other words, the meaning of the will.  While probate is concerned with determining what the will says, construction is about determining what the will means.  If there is uncertainty about the meaning of a will, an interested party can apply to the Supreme Court to have the will construed.
Contested probateAlso called “Probate in Solemn Form”.  When there are doubts about the validity of a will, the court can be asked to determine whether a particular will is valid.  The most common basis for contesting the validity of a will is that there is doubt about the testamentary capacity of the person who made the will.  Another basis for contesting the validity of a will is that the will was made as a result of undue influence.  The validity of a will may also be contested on the basis of lack of knowledge and approval.
Contesting a willThe main ways of contesting a will are by contested probate or by a family provision application.
De facto partnerA de facto partner may be entitled to a share of an estate under the intestacy rules.  A de facto partner may also be entitled to make a family provision application.  For the purposes of the Succession Act 1981, the definition of de facto partner is found in section 32DA of the Acts Interpretation Act 1954 (Qld)
Donatio mortis causaLatin phrase describing a binding verbal gift, where the gift is made in expectation of imminent death.  Plural: donationes mortis causa.  A will must be in writing, but this type of gift can be verbal.
Enduring Power of AttorneyA special form of document authorising someone to act on behalf of another person.  It is “enduring” because it continues to be effective when the person making it no longer has capacity to manage their own affairs.
EPASee “Enduring Power of Attorney”.
EstateAll of the assets and liabilities of a deceased person.  The word can also apply to the affairs of a living person, but it is not commonly used in that context except in a bankruptcy.
Estate AdministrationWhen you are the executor of a will and you need help attending to paying the final bills and distributing the assets to the beneficiaries we are able to provide this service.
Executor/ Executrix/ ExecutricesA person appointed by a will to administer a deceased person’s estate.  Executrix is the feminine version, and “executrices” is the feminine plural.  Nowadays, “executor” is used as a term that is gender-neutral.
Family Provision ApplicationThe spouse, children (including step-children), and some categories of dependants of a deceased person may be entitled to claim further provision from an estate.  In Queensland, this type of claim can be brought in the District Court or the Supreme Court, depending on the amount of provision claimed.  The court may override the will (or the intestacy rules) if the applicant shows a need for further provision from the estate.
FPASee “Family Provision Application”.
Further provisionSee “Family Provision Application”.
IntestacyAn estate where there is no will.
Intestacy RulesThe laws that determine how an estate will be distributed when there is no will.  These rules are contained in the Succession Act 1981.
Joint tenancyA form of property ownership between two or more people, where the survivor/s automatically take complete ownership of the property on the death of any of the co-owners.  In contrast, see tenancy in common.
Knowledge and approvalFor a will to be valid, the testator must know and approve what is in the will.
Letters of administration on intestacyWhere there is no will, the court may appoint someone to administer the estate in accordance with the intestacy rules.  The court’s authorisation is called letters of administration.
Letters of administration with the will annexedAlso known by the Latin phrase “Letters of administration cum testamento annexo”.  When the executor does not obtain probate, another person may be appointed by the court (by being granted letters of administration) to administer the estate in accordance with the will.
Mutual willsWills made in conjunction with an agreement that the testators will leave their estates in a particular way.
No Win No FeeIf you want to contest a will we can consider the details of your claim, the number of other potential beneficiaries and the size of the estate and consider if we will act for you on a no win no fee basis.
ProbateA document issued by the Supreme Court confirming the authority of the executor to administer an estate.
Probate in Solemn FormSee “Contested probate”.
SMSFSelf Managed Superannuation Fund.  An SMSF is governed by its trust deed and by other relevant laws such as the Superannuation Industry (Supervision) Act 1993 (Commonwealth).
Solemn Form ProbateSee “Contested probate”.
Succession Act 1981This is the main statute that governs succession law in Queensland.
Succession LawThe area of law that deals with inheritance upon death.
SuperannuationSuperannuation death benefits do not automatically form part of an estate.  This will depend on whether the trustee of the superannuation fund exercises a discretion (or is obligated, pursuant to a binding death benefit nomination) to pay the superannuation to the estate.
Tenancy in CommonA form of property ownership between two or more people, where a deceased owner’s share becomes part of his/her estate, which he/she is able to dispose of in a will. In contrast, see joint tenancy.
Testamentary Capacity

Testamentary capacity refers to the mental capacity of a person to make a will.  A person may have sufficient mental capacity to make a will even though they are physically incapacitated.  The following is one way of stating the legal tests for testamentary capacity (paraphrasing the test in Banks v Goodfellow, as re-stated in Read v Carmody):

  • Did the testator have the capacity to understand the legal nature and significance of making a will?
  • Was the testator capable of being aware of, at least in general terms, the nature, extent and value of the testator’s property?
  • Was the testator capable of being aware of those who may reasonably be thought to have a claim upon the testator’s testamentary bounty, and the basis for, and nature of, the claims of such persons?
  • Did the testator have the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons?
  • Did the testator suffer from a condition (whether “mental illness” [or psychosis] in the strict sense, or any other form of “mental disorder”, including, but not limited to, deterioration in higher intellectual function, or dementia) which detrimentally affected the testator’s consciousness or sense of orientation, or which had brought about disturbances to the testator’s intelligence, cognition, thought content, thought processes, judgment and the like (whether or not that condition may be transient, or, if appropriately treated, reversible)?
If the testator fails any of those tests, then he/she does not have testamentary capacity.
Testator/TestatrixA person who makes a will.  Testatrix is the feminine version.  Nowadays, “testator” is used as a term that is gender-neutral.
TFMTestator’s Family Maintenance application; same as FPA.
TrustA trust exists where the legal owner of property holds that property for the benefit of the beneficiaries of the trust.
UndueWhen a person has been coerced into making a will, that will is invalid as it is said to have been made as a result of undue influence.
WillA revocable disposition of property, taking effect upon death.

 

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