Ademption of a Gift

In New South Wales, ademption occurs when a specific gift mentioned in a will cannot be given because the item no longer exists in the estate at the time of the testator’s death. This typically happens if the asset has been sold, lost, or destroyed before the testator’s death.

Administration of an Estate

Estate administration in NSW involves managing and settling the affairs of a deceased person in accordance with their will or, if no will exists, under the rules of intestacy. This process includes identifying and collecting the deceased’s assets, paying off debts and taxes, and distributing the remaining assets to the rightful beneficiaries.

Adult Child

An adult child refers to a son or daughter of the deceased who is over the age of 18. Adult children may have legal rights in estate matters, including eligibility to make a family provision claim if they have not been adequately provided for in their parent’s will.

Alteration to a Will

An alteration to a will in NSW must be made with the same formalities as the original will, including being in writing and witnessed. If these requirements are not met, the alteration may be considered invalid.

Alternative Dispute Resolution

ADR encompasses various processes like mediation and arbitration, used to resolve disputes outside of court. It’s often employed in legal disputes including family law and estate matters, aiming for a cost-effective, quicker, and less adversarial resolution.

Ancillary Fund

An ancillary fund in NSW is a charitable trust designed to support other deductible gift recipients (DGRs). There are two types: public ancillary funds, which receive donations from the public, and private ancillary funds, typically funded by private groups or individuals.

Attestation or Attestation Clause

An attestation clause is part of a will that confirms the will was signed by the testator in the presence of witnesses, who also sign. This clause is essential for the legal validity of the will, as it provides evidence that the will was properly executed.

Beneficiary

A beneficiary in NSW law refers to an individual or entity who is entitled to receive benefits from a will, trust, or other legal arrangement. In the context of a will, a beneficiary is someone designated to receive part or all of the deceased’s estate, including assets like money, property, or other items.

Beneficiary Designation

Beneficiary designation involves specifying individuals or entities to receive benefits from financial instruments like life insurance policies, superannuation funds, or retirement accounts upon the account holder’s death. This designation is separate from a will and often takes precedence over the will for those specific assets.

Bequest

A bequest in NSW law is a gift left in a will, typically involving the transfer of personal property like money, shares, or other movable items to a specific beneficiary. It can be conditional, unconditional, specific (designated items), or general (undesignated assets).

Blended Family

A blended family in NSW estate law refers to a family where one or both partners have children from previous relationships, possibly alongside children from their current relationship. Estate planning in blended families involves ensuring fair and intended asset distribution, considering biological and step-children.

Capital Gains Tax

CGT is a tax on the profit realised from the sale of a non-inventory asset that was greater in value than its purchase price. In estates, CGT can apply to the disposal of assets like real estate or shares, with specific exemptions and concessions, especially regarding the deceased’s main residence.

Challenge a Will

In NSW, challenging a will typically involves contesting its validity or provisions in court, often on grounds such as lack of testamentary capacity, undue influence, or improper execution. Family members or other interested parties may initiate this if they believe the will does not reflect the true intentions of the deceased or if they have been unfairly excluded.

Child

A ‘child’ in the context of wills and estates refers to a biological or legally adopted child of the deceased. Children, especially minors, are often primary considerations in estate distribution and may have legal rights to a portion of the estate, particularly if there is no will.

Codicil

A codicil in NSW is a supplementary document to an existing will, used to make amendments or additions without needing to draft a new will. It must be executed with the same legal formalities as the original will, including being signed and witnessed.

Collaborative Law

Collaborative law in NSW is an approach to resolving legal disputes, including in family law and estate matters, through negotiation and mutual agreement without going to court. It involves parties working with their lawyers and other professionals to find a solution that is agreeable to all, emphasising cooperation and open communication.

Common Law Jurisdiction

New South Wales operates under a common law jurisdiction where law is developed by judges through decisions in court cases, in addition to statutes enacted by the legislature. This system is based on legal precedents and case law, guiding the interpretation and application of laws.

Community Foundation

a community foundation is a not-for-profit organisation pooling donations for investment and grant-making to address local community needs. These foundations support various causes such as education, health, and social services and are often focused on a specific geographic area.

Contest a Will 

To contest a will in NSW, an individual typically challenges the validity of the will or its provisions in court, commonly on grounds like undue influence, lack of testamentary capacity, or improper execution. Eligible individuals, such as family members or dependents, can also contest a will under family provision laws if they believe they have not been adequately provided for.

Contingent Bequest

A contingent bequest in NSW wills is a gift that depends on the occurrence of a specified event or condition. If the condition is not met, the bequest either does not take effect or is redirected to an alternate beneficiary. This type of bequest is used to address uncertainties or specific wishes of the testator.

De Facto Spouse

A De Facto Spouse refers to an individual in a relationship akin to marriage but not legally married. NSW law recognises de facto relationships, giving such partners similar rights and obligations to those of married couples, especially in matters of estate distribution and family law.

Deductible Gift Recipient (DGR)

A Deductible Gift Recipient in Australia, including NSW, is an entity or fund entitled to receive tax-deductible donations. To qualify as a DGR, the organisation must meet specific criteria set by the Australian Tax Office, enabling donors to claim tax deductions for their contributions.

Devise

a ‘devise’ traditionally refers to a gift of real property (like land or buildings) in a will. The person receiving the devise is known as the ‘devisee’. Modern usage may apply ‘devise’ more broadly to include any gift made in a will.

Discretionary Jurisdiction

Discretionary jurisdiction in NSW refers to the power of a court to decide if it will exercise its jurisdiction in a particular case. This allows judges to decide based on the specifics of each case, considering factors such as relevance, impact on parties, and broader justice interests.

Disentitling Conduct

Disentitling Conduct refers to behaviour by a potential beneficiary that may result in them being denied an inheritance. This could include actions such as neglect or abuse of the testator. Such conduct is often considered in family provision claims where a court may decide against providing for a beneficiary due to their behaviour towards the deceased.

Dispute a Will

To dispute a will in NSW, a person may challenge the legal validity of the will or its specific provisions, often on grounds of undue influence, lack of testamentary capacity, or improper execution. Disputes can also arise from family provision claims, where eligible individuals argue that the will does not adequately provide for their needs.

Domicile

Domicile refers to the place where a person has their permanent home and to which they intend to return. It is a legal concept used to determine jurisdiction and rights in various matters, including taxation and estate law. A person can only have one domicile at a time, and it changes only when a new domicile is established.

Donor Advised Fund

A Donor Advised Fund (DAF) in Australia is a philanthropic fund managed by a third party, allowing donors to make charitable contributions, receive immediate tax benefits, and recommend grants from the fund over time. DAFs offer a flexible way for individuals to manage their charitable giving.

Enduring Power of Attorney

An Enduring Power of Attorney (EPOA) in NSW is a legal document that allows an individual to appoint another person to make decisions on their behalf, particularly financial decisions, even if the individual loses mental capacity. Unlike a general power of attorney, an EPOA remains effective if the person becomes mentally incapacitated.

Equitable Doctrine of Undue Influence

In NSW law, the Equitable Doctrine of Undue Influence is applied when someone is coerced or manipulated into making a legal decision or document, such as a will, due to an imbalanced relationship of trust or power. If undue influence is proven, the influenced document or transaction can be declared invalid by a court.

Equity

Equity refers to a set of legal principles supplementing common law to address situations where strict application of common law would result in injustice. Principles of equity include trust law, fiduciary duties, and equitable remedies like injunctions and specific performance.

Estate

In NSW, an estate encompasses all the property, assets, and liabilities left by an individual at their death. This includes real and personal property, which is managed and distributed according to the deceased’s will or, if there is no will, as per the rules of intestacy.

Estate Planning

Estate planning in NSW involves preparing tasks that manage an individual’s asset base in the event of incapacitation or death. This includes creating wills, setting up trusts, designating beneficiaries, and sometimes establishing enduring powers of attorney, aiming to ensure asset protection and smooth transfer to beneficiaries.

Estates in Fee Simple

In NSW, an estate in fee simple is the most complete form of property ownership. It grants the owner absolute control over the land, including the right to sell, lease, or bequeath the property, and it continues indefinitely unless explicitly transferred.

Executor/Executrix

an executor (male) or executrix (female) is the individual appointed in a will to administer the deceased’s estate. Their duties involve collecting and managing estate assets, paying debts and taxes, and distributing assets to beneficiaries according to the will’s instructions.

Execution

In the legal context of NSW, execution refers to the formal process of signing a legal document to make it valid, such as a will or contract. For wills, it involves the testator signing the document in the presence of two witnesses, who also sign, to validate the will.

Family Protection

While not a specific legal term in NSW, family protection generally encompasses legal strategies and mechanisms, like wills, trusts, and powers of attorney, used to safeguard family assets and provide for dependents, particularly in estate planning.

Family Provision

Family provision in NSW refers to a legal claim made under the Succession Act 2006 by eligible individuals, typically close family members, who have been inadequately provided for in a deceased person’s will. The court may order reasonable provisions from the estate for their maintenance, education, or advancement in life.

Family Provision Application

A Family Provision Application in NSW is a legal process where an eligible person, such as a spouse or child, applies to the court for financial provision from a deceased person’s estate. This is typically done when the applicant believes they have not been adequately provided for in the will.

Fiduciary Duty

In NSW, a fiduciary duty is a legal obligation where an individual, such as a trustee or executor, must act in the best interests of another party, like a beneficiary. This duty, one of the highest obligations imposed by law, requires fiduciaries to act with loyalty, good faith, and to avoid conflicts of interest.

Forced Share

While the concept of a forced share is not directly applicable in NSW law as it is in some civil law jurisdictions, it typically refers to a legal right where certain family members are automatically entitled to a portion of an estate, regardless of the will’s contents. In NSW, family provision claims allow for a similar outcome, where eligible family members can claim a portion of the estate if not adequately provided for.

Forfeiture

Forfeiture is a legal principle where a person loses rights, property, or privileges due to a breach of legal obligation. In the context of wills and estates, the forfeiture rule can apply to disqualify a beneficiary from inheriting if they have caused the death of the testator.

Fraud

Fraud in NSW law refers to a deliberate deception made for personal gain or to harm another individual. In the context of wills and estates, this could involve forging a will or deceiving the testator about the nature of a document they are signing, which can lead to the invalidation of a fraudulent will or transaction.

Gift Fund

A gift fund in NSW typically refers to a fund established by a deductible gift recipient (DGR) organisation for receiving gifts of money or property. Contributions to these funds are used for the organisation’s primary purpose and can be tax-deductible for donors.

Grant of Letters of Administration

a Grant of Letters of Administration is a legal document issued by the Supreme Court when someone dies without a valid will (intestate) or when the named executor is unable to act. It authorises an administrator, usually a close relative, to manage and distribute the deceased’s estate according to the rules of intestacy.

Grant of Probate

a Grant of Probate is a legal document issued by the Supreme Court that validates a deceased person’s will and authorises the named executor to manage and distribute the estate according to the will’s terms. It’s required when the deceased has left assets that need legal authority to be dealt with.

Guardianship

In NSW law, guardianship refers to the legal authority granted to an individual to make decisions on behalf of someone who is unable to make decisions for themselves, typically due to age, incapacity, or disability. Guardians make decisions about personal matters like healthcare and living arrangements for the person under their care.

Holograph Will

A holograph will, while not formally recognised in NSW, refers to a will entirely written, dated, and signed in the handwriting of the testator. Although NSW law requires wills to be witnessed to be valid, under exceptional circumstances, such as imminent peril, the court may accept an unwitnessed document as a valid will.

Incorporation by Reference

In NSW, incorporation by reference in a will occurs when a document not physically attached to the will is treated as part of it. For this to be legally effective, the external document must be in existence at the time the will is executed and clearly identified in the will. This method allows for the inclusion of detailed instructions or lists without overcomplicating the will itself.

Insane Delusion

In NSW, an insane delusion in the context of wills refers to a false belief held by the testator that influences their decision-making when creating or changing a will. If it can be proven that a specific bequest in the will was made under an insane delusion, that part of the will may be invalidated.

Inheritance Tax

As of the latest information available, there is no inheritance tax in Australia, including NSW. Instead, other taxes such as capital gains tax may apply to the assets of a deceased estate, particularly when assets are sold or transferred to beneficiaries.

Inter Vivos

“Inter vivos” is a Latin term meaning “between the living.” In NSW law, it is used to describe transactions or gifts made during a person’s lifetime, as opposed to those made as part of a will (testamentary gifts).

Interlineation

Interlineation in NSW legal documents, like wills, refers to the act of adding words or phrases between existing lines of text. For interlineations in a will to be valid, they generally need to be initiated by the testator and the witnesses at the time of the will’s execution.

Intestate

In NSW, a person is said to die intestate if they pass away without a valid will. In such cases, the distribution of their estate is governed by the state’s intestacy laws, which typically distribute assets to the deceased’s closest living relatives in a set order of priority.

Intestacy Rules

In NSW, intestacy rules apply when someone dies without a valid will, dictating how their estate is distributed. These rules prioritise distribution to the deceased’s closest relatives, typically starting with the spouse and children, followed by other family members in a defined order.

Joint Tenancy

In NSW property law, joint tenancy is a form of co-ownership where two or more parties own property equally with the right of survivorship. Upon the death of one co-owner, their share automatically passes to the surviving co-owner(s), regardless of the deceased’s will.

Joint Will

A joint will in NSW is a single will made by two or more people, usually spouses, which outlines how their property is to be disposed of upon their deaths. It is binding on the surviving parties, meaning they cannot alter the will once one of the makers has passed away.

Legacy

In NSW, a legacy refers to a gift of personal property, often money or specific items, left to a beneficiary in a will. It is distinct from a devise, which is a bequest of real property.

Letters of Administration

In NSW, Letters of Administration are granted by the Supreme Court when a person dies intestate (without a valid will) or the named executor is unable or unwilling to act. They authorise an administrator, usually a close relative, to manage and distribute the deceased’s estate in accordance with the rules of intestacy.

Life Estate

In NSW, a life estate is a legal arrangement where a person (the life tenant) has the right to use or derive income from a property during their lifetime. After the life tenant’s death, the property passes to another person or entity (the remainderman) as specified in the will or trust creating the life estate.

Life Interest

Similar to a life estate, a life interest in NSW law grants an individual the right to receive benefits from property or assets (such as income or residency) for the duration of their life. Upon their death, the rights to the property or assets revert to another designated person or revert to the estate.

Lucid Interval

In NSW estate law, a lucid interval refers to a period when an individual, who normally lacks mental capacity due to illness or impairment, temporarily regains enough mental clarity to make or alter a will. Wills made during a lucid interval can be valid if the individual understands the will-making process and its implications.

Mediation

mediation is a form of alternative dispute resolution where a neutral third party, the mediator, assists disputing parties in reaching a mutually agreeable solution. It’s used in various legal disputes, including family law, commercial matters, and estate disputes, emphasising cooperative problem-solving.

Moral Duty

In NSW, particularly in the context of wills and estates, moral duty refers to an informal obligation a testator may feel to provide for certain individuals in their will, such as family members or dependents. While not a legal requirement, the concept of moral duty can influence will-making and is considered in family provision claims, where the court assesses whether the testator failed to fulfil their moral duty to provide for the applicant.

Mutual Wills

In NSW, mutual wills are made by two people, often spouses, agreeing to leave their assets to each other and then to agreed beneficiaries, with the understanding that neither will change their will after the death of the other.

Notional Estate

A notional estate in NSW includes assets not directly owned by a deceased person at their death but can be included in their estate for family provision claims, especially if they were transferred to avoid legal obligations.

Pecuniary Legacy

A pecuniary legacy in NSW is a specific monetary gift left to a beneficiary in a will. It is a fixed sum of money, unlike a residuary legacy, which involves receiving a remainder of the estate after other bequests and expenses have been accounted for.

Per Stirpes

‘Per stirpes’, a legal term in estate planning in NSW, refers to a method of distributing an estate where descendants inherit an equal share of an estate in the event their parent (the original beneficiary) predeceases the testator. This means the share intended for a deceased beneficiary is passed down to their children in equal parts.

Personal Property

In NSW law, personal property refers to movable assets, such as money, stocks, vehicles, jewellery, and other items, as opposed to real property like land or buildings. In estate law, the distribution of personal property is a key part of administering a deceased person’s estate.

Personal Representative

In NSW, a personal representative is the individual appointed to administer a deceased’s estate, acting as an executor (if named in a will) or as an administrator (if there’s no will).

Power of Attorney

A Power of Attorney in NSW is a legal document authorising one person to act on behalf of another in financial or legal matters, which can be general or enduring (remaining valid if the person loses mental capacity).

Prescribed Private Fund

In Australia, including NSW, a Prescribed Private Fund (now known as a Private Ancillary Fund) is a private charitable trust where donors can contribute and receive tax benefits, with the fund distributing to other deductible gift recipients.

Probate

Probate in NSW is the legal process where the Supreme Court validates a deceased’s will and authorises the executor to administer the estate.

Probate Registry

The Probate Registry in NSW is a division of the Supreme Court that handles the administration of probate and manages the filing and processing of wills and estate matters.

Public Trustee

In NSW, the Public Trustee (NSW Trustee & Guardian) is a government agency that offers services like preparing wills, acting as an executor, and managing trusts and estates, especially when there’s no suitable private executor available.

Real Property

In NSW, real property refers to land and any permanent structures on it, such as buildings or houses, and is distinguished from personal property like money or vehicles.

Republishing of a Will

Republishing a will in NSW involves re-executing or making a codicil to an existing will to reaffirm its validity, typically after changes or significant life events.

Residuary Estate

The residuary estate in NSW is the portion of a deceased’s estate that remains after all debts, taxes, expenses, and specific bequests have been distributed, usually passed to designated beneficiaries.

Residuary Legacy

A residuary legacy in NSW is a bequest in a will where the beneficiary receives the remainder of the estate after all other legacies, debts, and expenses have been paid.

Residue of Estate

In NSW, the residue of an estate refers to what is left after all debts, taxes, specific bequests, and expenses have been paid. This remainder is then distributed to beneficiaries according to the will or intestacy rules.

Reversionary Legacy

A reversionary legacy in NSW is a bequest in a will that reverts to a second beneficiary, usually after the death of the primary beneficiary. It ensures the asset is used by the primary beneficiary first, before passing on.

Revival of a Will

In NSW, revival of a will occurs when a previously revoked will is reinstated, either by re-executing the original will or declaring in a new will or codicil the intention to revive the old will.

Revocation of a Will

Revocation of a will in NSW involves legally cancelling or nullifying an existing will, typically done by creating a new will or physically destroying the old one with the intent to revoke it.

Settlor

In NSW, a settlor is the person who creates a trust by transferring assets into it, defining its terms, and appointing trustees. The settlor’s role is crucial in establishing the trust’s purpose and beneficiaries.

Specific Bequest

In NSW, a specific bequest is a gift of a particular item or asset, like a piece of jewellery or a sum of money, designated in a will to a particular beneficiary.

Spouse

In NSW law, a spouse includes a legally married partner and can also encompass a de facto partner, both of whom may have rights in estate matters, including inheritance and family provision claims.

Statutory Will

A statutory will in NSW is a will made by the court for someone who lacks the mental capacity to make their own will, ensuring their assets are distributed in a way that reflects their likely intentions.

Substantial Compliance

Substantial compliance in NSW wills and estates law refers to the idea that a will that does not strictly meet all legal formalities may still be considered valid if it substantially fulfils the requirements and expresses the testator’s intent.

Succession Act

The Succession Act 2006 in NSW governs the laws of wills, estate administration, and family provision, outlining how estates are managed and distributed after death, and providing mechanisms for contesting wills.

Succession Law

Succession law in NSW encompasses the legal rules and principles governing the transfer of a person’s property and obligations after their death, including the administration of estates, the validity of wills, and rules for intestacy.

Tenancy in Common

In NSW, tenancy in common is a form of property co-ownership where each party owns a specified share of the property, which can be unequal. Upon death, an owner’s share does not automatically pass to the other owners but is instead distributed according to their will or the rules of intestacy.

Testamentary

‘Testamentary’ in NSW law refers to anything relating to a will or the disposition of property upon death. It encompasses actions, documents, or trusts that are effective upon the testator’s death.

Testamentary Capacity

Testamentary capacity in NSW is the legal and mental ability of a person to make a valid will, requiring an understanding of the nature of the will, knowledge of the property, and awareness of the claims of potential beneficiaries, free from delusion.

Testamentary Trust

In NSW, a testamentary trust is a trust created by a will that comes into effect after the death of the testator. It manages and protects assets for beneficiaries, often used for minors or beneficiaries needing financial oversight.

Testate

Dying testate in NSW means a person has died leaving a valid will. This will outlines how their estate is to be distributed, appointing executors to carry out these wishes.

Testation

Testation in NSW refers to the act or process of making a will or testament, where a person specifies the disposition of their assets and affairs after death.

Testator/Testatrix

In NSW, a testator (male) or testatrix (female) is the person who makes a will. This individual decides how their assets will be distributed upon their death and may appoint executors and guardians in the will.

Testator’s Family Maintenance

This term is more commonly known as a ‘family provision claim’ in NSW. It allows certain eligible individuals, like family members or dependents, to claim part of a deceased person’s estate if they believe they haven’t been adequately provided for in the will.

Trust

In NSW, a trust is a legal arrangement where one party (the trustee) holds and manages property or assets for the benefit of another party (the beneficiary). Trusts are established for various purposes, including asset protection, estate planning, and managing funds for minors or charities.

Trust Instrument

A trust instrument in NSW is a legal document that establishes and outlines the terms of a trust. It defines the roles of the trustee and beneficiaries, the purpose of the trust, and instructions for managing and distributing the trust assets.

Trustee

In NSW, a trustee is an individual or legal entity responsible for managing a trust in accordance with its terms and for the benefit of the beneficiaries. The trustee has a fiduciary duty to act in the best interests of the trust and manage its assets responsibly.

Undue Influence

In NSW, undue influence involves coercing someone to act against their free will or best interests, often in the context of making or changing a will or entering into a contract. Proving undue influence can invalidate the affected document or agreement.

Vesting

In NSW, vesting refers to the point at which a beneficiary gains an absolute right to property or assets in a trust or estate. This can occur at a specified time, event, or upon the fulfilment of certain conditions.

Waiver of Probate

In NSW, a waiver of probate is a situation where the formal probate process is not required, typically for small or straightforward estates. In such cases, assets may be released by institutions without a formal Grant of Probate, subject to certain conditions and indemnities.

Will

A will in NSW is a legal document specifying how a person’s assets should be distributed after their death. It outlines the distribution of assets, appoints an executor, and can include provisions like the establishment of trusts or guardianship arrangements.

Will-Maker

In NSW, a will-maker, also known as a testator or testatrix, is the person who creates a will. The will-maker decides how to distribute their assets post-death and may appoint executors and guardians within the will.

Witness

In the context of will-making in NSW, a witness is someone who observes the signing of the will by the will-maker and then signs the will themselves to verify this. NSW law typically requires at least two witnesses, who should not be beneficiaries of the will.