One of the most common complaints about lawyers and the law is the language used, which has even produced its own name, “legalese”. Why is that?
There are several reasons which have led to this. For centuries the English legal system, which we have inherited, used much Latin and Norman-French terms and words. These were also the languages of education, science and the upper classes, while much of the everyday communication was in good old Anglo-Saxon based English. Hence much technical language and language about concepts, principles and so on tended to use Latin based words.
Add to that the innate conservatism of courts and the legal profession and there is an explanation. The other practical explanation is that over the years the courts would define what a word or phrase meant in a legal context, and so that word or phrase would be used to provide certainty of meaning. In this Newsletter we shall look at some of the terms which you may come across in connection with wills and estates.
Testator:- the person who makes a will.
Will:- A written document expressing the testator’s intentions to be carried out on his or her death. Previous Newsletters have covered the required formalities, but normally a will must be signed by the testator in the presence of two disinterested witnesses.
Codicil:- A document which amends a will. The same formalities are required for a codicil as for a will.
Executor:- The person named in a will as having the responsibility for carrying the will into effect. There can be more than one. The executor is responsible for collecting the estate's assets, selling what has to be sold and then distributing them in accordance with the will.
Probate:- A Grant of Probate is the recognition by the Supreme Court of the validity of a will, and of the appointment of executors. It is obtained by an application to the court by the executor, and is necessary to deal with real property - other than jointly owned property - and substantial investments.
Letters of Administration:- These are the equivalent of a grant of Probate where there is no will, or a will cannot be found. An administrator may be a partner or next of kin of the deceased and a beneficiary, but it is not unusual to have a Public Trustee or a trustee company appointed as administrator.
Beneficiary:- Someone who receives a benefit under a will. A residuary beneficiary is one who receives-or shares- what is left after specific gifts have been paid.
Real property:- land or an interest in land, such as a lease or a mortgage. It may also be referred to as "realty."
Personal property:- Basically anything you can own other than real property. Typical examples are household contents, bank accounts and shares. Also classified as personal property are things such as copyright, patents and intellectual property.
Personal effects:- This is a phrase sometimes used in a will, and has been held to cover items of personal use, such as clothing and jewellery.
Survivorship:- Property which is jointly owned passes to a surviving joint owner automatically, despite what a will may try to say. The typical example is a jointly owned home, which becomes the sole property of the survivor on the death of his or her partner, and does not form part of the deceased's estate.