Practice Area » Wills » Glossary of Wills Terminology
Wills Glossary
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Abatement: Reduction or rebate of an amount owed, usually by agreement with the person to whom the debt is owed. Debts or claims may be abated pro rata if there is not enough money to meet them all.
Ab initio: (Latin) from the beginning.
Action: Proceedings in a civil court.
Administrator: A person appointed to manage the property of another (such as the administrator of the estate of someone who has died without leaving a will).
Affidavit: Sworn written statement signed by a deponent, who swears that its contents are true to the best of his knowledge and belief. It must be witnessed by a practising solicitor or commissioner for oaths.
Antedate: To date retroactively, before a document was drawn up.
Audi alteram partem: (Latin:hear the other side) A principle of natural justice which requires that, where a decision may affect an individual's rights, that person has a right to be heard. It includes the right to receive notice of a hearing and to be legally represented.
Beneficiary: Person who receives a gift under a will, or for whose benefit property is held by an executor or trustee.
Child: Person under 18.
Codicil: Written amendment or addition to an existing will.
Common law: Judge-made law which has developed over centuries, also referred to as "unwritten" law. Common law (as practised in Ireland, England and the USA) is often contrasted with civil law systems (such as in France or Germany) where laws are set down in a written code.
Construction: Legal process of interpreting a phrase or document. If a term is unclear or ambiguous, lawyers and judges must try and interpret (or construct) its probable intention and purpose. This may be done by referring to other parts of the document, by reference to the known intentions of those who drew up the document, or, in the case of statutes, by referring to an interpretation law which gives guidelines for construction.
Constructive trust: Trust imposed by a court in certain circumstances, regardless of the intention of the parties involved (such as where a trustee has improperly profited from his position).
De facto: (Latin:in fact) Something which exists in fact, though not necessarily approved by law (de jure). A common law spouse may be referred to as a de facto spouse, although not legally married.
Descendant: Persons born of, or from children of, another. Grandchildren are descendants of their grandparents, as children are descendants of their natural parents. The law distinguishes between collateral descendants, such as nephews and nieces, and lineal descendants, such as sons and daughters.
Domicile: A person's fixed and permanent residence; a place to which, even if he is temporarily absent, he intends to return. Legally, a person may have many residences or several nationalities, but only one domicile.
Donatio mortis causa: (Latin:gift due to death) Gift made by a dying person with the intent that the person receiving the gift shall keep it if the donor dies from his existing complaint. Such a gift is excluded from the estate of the deceased, as the property is automatically conveyed on the donor's death.
Donee: Beneficiary of a trust or person given a power of appointment.
Donor: Person who gives property for the benefit of another, usually through a trust. Sometimes referred to as a "settlor." Also used to describe the person who signs a power of attorney.
Endowment: Transfer of money or property (usually as a gift) to a charitable organisation for a specific purpose, such as research or a scholarship.
Executor: Person appointed by a testator to administer a will. The executor is a personal representative whose duties include burying the dead, proving the will, collecting in the estate, paying any due debts and distributing the balance according to the wishes of the deceased.
Express trust: Trust specifically created by a settlor, usually in a document such as a will, although it can be oral. An express trust which deals with land must be in writing.
Fiduciary: Person (such as a trustee, company director or executor) who exercises rights and powers for the benefit of another person, but without being under the control of that person. A fiduciary must not allow any conflict of interest to affect his duties and would not normally be allowed to profit from his position.
Fraud: Dishonest conduct designed to persuade another person to give something of value by lying, repeating something that is or ought to have been known by the fraudulent party to be false or suspect, or by concealing a relevant fact from the other party. Fraud allows a court to void a contract or to set aside a judgment, and can result in criminal liability. A person who defrauds creditors of a company may be held personally liable.
In personam:(Latin:against the person) All legal rights are either in personam or in rem. An in personam right attaches to a particular person.
In rem: (Latin:against the thing) In rem rights relate to property and are not based on any personal relationship.
Inter alia: (Latin:among other things) Used to precede a list of examples covered by a more general descriptive statement.
Interlineation: Addition to a document after it has been signed. Such additions are disregarded unless they are initialled by the signatories and, if necessary, witnessed.
Inter partes: Latin: between the parties.
Intestate: Person who dies without making a valid will.
Legal Aid:Government scheme providing advice or assistance from a solicitor or barrister free or at a reduced rate.
Life tenant: Beneficiary of a life estate.
Lineal descendant: Direct descendant (for example, the child of his natural parent).
Minor: Person under the age of 18 who is not married (or has not been married). A minor may only enter into certain contracts, such as those for necessaries or an apprenticeship. An Irish resident under the age of 18 may not legally marry without the permission of the Court, even if the ceremony takes place somewhere (such as Northern Ireland) where the minimum age for marriage is under 18.
Next of kin: Person's nearest blood relation. The expression has come to describe those persons most closely related to a dead person and therefore due to inherit his property if there is no will.
Pendente lite: (Latin:during litigation) If the validity of a will is challenged, a court may appoint an administrator pendente lite with limited powers to preserve the assets of the deceased until a hearing on the validity of the will.
Per stirpes: (Latin:by stocks) Inheriting per stirpes means the division of a deceased's estate among his descendants, with the children of a deceased son or daughter dividing their parent's share equally among themselves.
Perpetuity: Forever, of unlimited duration. The law leans against against agreements that are to last in perpetuity because they may hinder commerce by impeding the circulation of property. The rule against perpetuities says that a limitation of any interest in land is void if it can vest outside the perpetuity period, which is a life plus 21 years. For example, if a will proposes the transfer of an estate at some uncertain future date, which is either more than 21 years after the death of the testator or more than 21 years after the life of a person identified in the will, the transfer is void.
Personal representative: Person who administers the estate of a deceased person. Where a person dies without a will, the court appoints an administrator. A personal representative named in a will is called an executor.
Power of attorney: Document under seal which gives a person the right to make binding decisions for another, as an agent. A power of attorney may be specific to a certain kind of decision or general, in which the agent makes all major decisions for the subject of the power of attorney.
Precatory words: Words that express a wish, hope or desire rather than a clear command. Precatory words in trusts or wills can cause problems when the courts have to decide the real intention of the settlor or testator. If a gift is given, with the addition of precatory words, the courts tend to construe the words as expressing the reason for the gift, rather than a restriction on its use or the establishment of a trust.
Pro tempore (pro tem): (Latin:for the time) Temporary or for the time being.
Probate law: That part of the law which regulates wills and other subjects related to the distribution of a deceased person's estate.
Quantum: Latin: amount or extent.
Reserved costs: Apportionment of payment of legal fees to be decided at a later stage.
Respondent: Person against whom a summons is issued, or a petition or appeal brought.
Resulting trust: Trust which comes into being when an express trust fails. It is similar to a constructive trust but the court will presume an intention to create a trust. The court will assume that the possessor of property is only holding it in trust for the rightful owner. (In constructive trusts, the courts do not presume any intention to create a trust.)
Solicitor: General lawyer who may deal directly with the public.
Sui juris: (Latin:of his own right) Person who has full legal rights and is not under any incapacity, such as being bankrupt, a minor or mentally incapable.
Surety: Person who has pledged himself by deed to ensure that another person fulfils an obligation - such as appearing in court or paying back a loan.
Testator:Person who dies after making a valid will.
Trust: Property given by a donor or settlor to a trustee, for the benefit of another person (the beneficiary or donee). A trustee manages and administers the property. A will is a form of trust but a trust can be formed during the lifetime of the settlor, in which case it is called an inter vivos or living trust.
Trustee: Person who holds property rights for the benefit of another through the legal mechanism of the trust. A trustee usually has full management and administration rights over the property, which must be exercised to the advantage of the beneficiary. All profits from the trust go to the beneficiary, although the trustee is entitled to recover administrative costs.
Videlicet: (Latin:that is to say) The abbreviation of videlicet ( viz.) is commonly used in legal documents to advise that what follows provides more detail about a preceding general statement.
Waiver: Renunciation of a right or benefit. Waivers are not always in writing. Sometimes actions can be interpreted as a waiver.
Year: When used without any other qualification, a 12-month period beginning on January 1.
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