Glossary of Technical Terms

Glossary of Technical Terms

Administrator

The person appointed under letters of administration to administer a deceased estate.

Age of majority

18 years of age. A person is considered an adult at law and achieves full legal capacity when they reach the age of majority.

Appointment of Enduring Guardian

A legal document under which one person (the appointer) appoints another person or persons (the guardian) to act as their legal guardian in the event they become legally incapacitated.

Attest

To acknowledge the truth of a document by signing your name.

Beneficiary

Someone who is gifted property in a Will.

Child

Includes a natural child (including one borne out of wedlock) and a legally adopted child.

Codicil

A document amending a Will.

Death certificate

An official certificate acknowledging that a person has died.

Deed

A legal document that is accorded special significance at law because of the formality associated with its execution.

De facto relationship

A man and a woman who live together in a committed domestic relationship as if they were effectively married to each other.

Enduring guardian

The person appointed in an Appointment of Enduring Guardian to act as the appointer’s legal guardian in the event the appointer becomes legally incapacitated. The person is referred to as an “enduring” guardian because their appointment survives (endures) the loss of legal capacity by the appointer.

Enduring Power of Attorney

A special type of Power of Attorney that survives (endures) the loss of legal capacity by the person appointing the attorney. It is to be distinguished from a “regular” Power of Attorney, which becomes ineffective if and when the principal loses legal capacity.

Enduring Power of Attorney – Combined Financial and Personal/Health Matters

A special type of Enduring Power of Attorney permitted in the Australian Capital Territory and Queensland that gives the attorney the power to make decisions for the principal in relation to financial matters as well as personal and health matters.

Enduring Power of Attorney – Financial Matters

An Enduring Power of Attorney that gives the attorney the power to make decisions for the principal in relation to their financial affairs. Often just referred to simply as an “Enduring Power of Attorney” in States and Territories other than the Australian Capital Territory and Queensland, where this is the main (or in some cases the only) type of Enduring Power of Attorney permitted under their law.

Referred to as an “Enduring Power of Attorney – Property Matters” in the Australian Capital Territory”.

Enduring Power of Attorney – Medical Treatment

A special type of Enduring Power of Attorney permitted in South Australia and Victoria that gives the attorney the power to make decisions for the principal in relation to what sort of medical treatment they should receive and whether medical treatment (including life support) should be withheld or withdrawn if they are not able to make those decisions for themselves.

Referred to as a “Medical Power of Attorney” in South Australia.

Enduring Power of Attorney – Personal/Health Matters

A special type of Enduring Power of Attorney permitted in the Australian Capital Territory and Queensland that gives the attorney the power to make decisions for the principal in relation to their personal and health matters if they are not able to make those decisions for themselves. This includes what sort of medical treatment they should receive and whether medical treatment (including life support) should be withheld or withdrawn. It also includes things like where the principal should live (eg at home or in a nursing facility), what they should eat, what they should wear, whether they work or undertake education or training and whether they apply for a license or permit.

Enduring Power of Attorney – Property Matters

The name given to an Enduring Power of Attorney – Financial Matters in the Australian Capital Territory.

Estate

The assets of the Will maker at the time of their death.

Executor

A person appointed in a Will to carry out the Will maker’s instructions for the distribution of their assets after their death (‘executrix’ is sometimes used to refer to a female executor).

General Power of Attorney

A Power of Attorney that authorises an attorney to do essentially anything that the principal may lawfully authorise an attorney to do.

Guardian

A person appointed to act as the legal guardian of the Will maker’s minor children or other dependants who do not have the capacity to care for themself, after the Will maker’s death.

Intestate

To die intestate means to die without a valid Will.

Joint Tenants

Where two or more people jointly own property with a so-called “right of survivorship”. This means that on the death of one of the owners, their share in the property automatically passes to the remaining owners. Because of this, a joint tenant cannot deal with their share in the property under their Will.

Compare “tenants in common” below.

Legacy

A legal term referring to a cash gift in a Will.

Legal capacity

The capacity to make and be bound by legal decisions. A person has legal capacity if they understand the nature and effect of their decisions and are able to communicate them to others.

Legally incapacitated

A person is legally incapacitated if they are not able to understand the nature and effect of their decisions and to communicate them to others.

Legal personal representative

The executor of your Will or the administrator of your estate.

Letters of administration

An official document granted by a court to allow an estate to be administered where a person has died intestate, or their Will is invalid, or there is no executor of an otherwise valid Will or there is property remaining in the estate that has not been dealt with in the Will.

Medical Power of Attorney

The name given to an Enduring Power of Attorney – Medical Treatment in South Australia.

Minor

A person who is under 18 years of age.

Mirror Wills

Wills made by two people (usually spouses or partners) that effectively mirror each other. Typically, in mirror Wills, each spouse/partner will leave their property to the other and then to a common beneficiary or beneficiaries (usually their children) if the other predeceases them.

Mutual Wills

Wills made by two people (usually spouses or partners) pursuant to a contract which specifies how each of them will distribute their property after they die. One of the terms of the contract is that neither can alter their Will without the consent of the other.

Partner

A term applied to couples who live in a de facto or same sex relationship. A person’s partner is the other person in that relationship.

Compare “spouse” below.

Predecease

To die before someone else.

Presumption of survivorship

A legal principle that if two people die at the same time, the older of the two is presumed to have died first.

Probate

An official document given to an executor which certifies that the Will of a deceased person is their last Will and Testament and authorises their executor to carry out the instructions in the Will.

Residuary beneficiary

The person or persons entitled to your residuary estate. In our online will service, we call them “reserve” beneficiaries.

Residuary estate or residue

The balance of your estate remaining after your debts and funeral and testamentary expenses have been paid and all specific gifts of money and property have been distributed. This may include gifts that have failed because a beneficiary has died before the gift to them has vested.

Same sex relationship

A relationship between two people of the same sex who live together in a committed domestic relationship as if they were effectively married to each other.

Sibling

A brother or sister.

Spouse

A term applied to couples who are legally married. A man’s spouse is his wife. A women’s spouse is her husband.

Compare “partner” above.

Standard Power of Attorney

A Power of Attorney that is not an Enduring Power of Attorney. Unlike an Enduring Power of Attorney, a standard Power of Attorney ceases to be effective if the principal becomes legally incapacitated.

Tenants in Common

Where two or more people jointly own property and there is no right of survivorship. Their shares in the property may be the same or different. On the death of one of the owners, their share is distributed in accordance with the terms of their Will or, if they don’t have a Will, under the law relating to deceased estates. Whoever takes their share in the property then becomes a tenant in common with the other owners.

Compare “joint tenants” above.

Testament

A statement of a person’s intentions for the distribution of their estate upon their death (hence “my last Will and Testament”).

Testamentary trust

A trust created under a Will.

Testator

The person making a Will (‘testatrix’ is sometimes used to refer to a female testator).

Trust

An arrangement where property is held by someone (the trustee) for the benefit of another person or persons (the beneficiary or beneficiaries).

Will

A legal document expressing the intention of a person about the distribution of their property after death. It may also include the appointment of a guardian of their minor children and funeral instructions.

Witness

A person who witnesses the signature of a party to a legal document and then signs their own name to that document acknowledging this.

For professional assistance with Enforcement of Agreements, please contact James Legal Consultants using the Contact Us link above.