• @DisputedWills
    Must-read thread. We note @stuartadamsuk and @LottieJohn1 ‘s caution, but judicial pressure to put cards on table -… https://t.co/8NGfX4qjyI
Home > Useful Definitions

Useful Definitions

Where a beneficiary is allocated certain assets, e.g. shares or property, towards their share of an Estate.
An amendment to a Will, being a separate document, also needs to be signed and witnessed in same way as a Will.
Where a beneficiary is given part of their share of the Estate, usually cash.
Difficult to define (no statutory definition exists), but you can only have one domicile, which is generally the country which you truly regard as your permanent home and where you intend to live and die. Note: you start life with a domicile of origin, which you inherit from your father, and a domicile of origin is quite sticky, i.e. it is hard to achieve a domicile of choice in another country unless you (a) sever links with the old country and (b) forge permanent links with the new country.
For Probate purposes an estate is not everything owned by the deceased - it is limited to those assets that pass under the Will, e.g. assets in the name of the deceased alone, as many assets in joint names pass outside the Will by survivorship - i.e. automatically to the surviving co-owner, but for the purposes of an Inheritance Act claim an estate does include jointly owned assets passing by survivorship.
Means the signing of the Will in the presence of two witnesses.
A person named in a Will to sort out the estate.
Little-used Latin word for a female executor.
Fiduciary capacity
Fiduciary means trust, so examples are someone acting under a power of attorney, or a carer, or a trusted adviser or helper.
'Golden if Tactless Rule'
In the case of Kenward v Adams, the Judge said that when preparing a Will for an elderly or ill testator, a solicitor should ask a doctor to witness the Will and write a statement about the testator's testamentary capacity.
Intestacy Rules
When a person dies without making a Will, their estate is distributed in accordance with the statutory rules known as the Intestacy Rules. The question of who inherits an estate under the Intestacy Rules depends on who has survived the deceased.

We have set out who will inherit under the intestacy rules on two flowcharts that you may find helpful to work out how an estate will be distributed. Flowchart A, shows how an estate will be distributed when a married person dies without a Will leaving a surviving spouse (or civil partner). Flowchart B shows how an estate will be distributed when an unmarried person dies without a Will and without leaving a surviving spouse or civil partner.

Alternatively, we have set out below the priority order of relations that will inherit an estate where the deceased has not left a Will:-
  • If a person dies leaving a husband/wife and children, then the first £250,000 of the estate passes to the surviving spouse*. If the estate is worth more than £250,000, the spouse inherits the first £250,000, the personal possessions and the income arising on half of the remainder above £250,000. The other half of the remainder above £250,000 passes to the children.
  • If a person dies leaving a husband/wife but no children, then the first £450,000 of the estate passes to the surviving spouse. If the estate is worth more than £450,000, the spouse inherits the first £450,000, the personal possessions and half the balance over £450,000. The other half of the sum over and above £450,000 passes to the parents, but if they have also died then to the brothers and sisters equally.
  • If a person dies without leaving a surviving husband/wife, but leaving children, then the estate passes to the children equally.
  • If a person dies without leaving a surviving husband/wife or children, then the estate passes to any surviving parents, but if none to surviving brothers and sisters equally, with the children of any deceased brother or sister inheriting their parent's share.

    If there are no surviving brothers or sisters (and no nephews or nieces), then the estate is split equally between any half-brothers and half-sisters (and their children if the parent has died), and if none to the surviving grandparents equally, and again if none to uncles and aunts. If none of these relatives can be located, the estate passes to the Crown.
Please note, this is a brief summary of the Intestacy Rules that we hope you find helpful, but full details of the Intestacy Rules can be found on the www.legislation.gov.uk website, where you will need to search for section 46 of the Administration of Estates Act 1925.

* Footnote – spouse includes civil partners as set out in the Civil Partnership Act 2004.
Jointly owned property
Note that there are two ways in which property such as houses can be owned jointly (as tenants in common and as joint tenants) and it is only when such property is owned as joint tenants that it will pass automatically by survivorship to the surviving owner. We can advise you almost immediately how such a property was owned.
Knowledge and approval
It is sometimes argued that a testator did not read what he was signing and therefore signed a Will which did not carry out his instructions. These are difficult cases to argue. (Note a recent case has confirmed that a testator can sign a Will without reading or understanding it, as long as he knows it to be the Will he gave instructions for at a time when he did know what he was doing).
Man and wife
Man and wife means that you were seen by others as being a couple; it does not mean that the Court will have to enquire into your personal life, although intimacy is a factor.
Mental capacity
The MCA 2005 defines the test for mental capacity generally as being "decision-specific" – meaning it varies according to the decision in question – so the level of capacity to make a simple Will is slightly lower than for a complex Will. Generally, though, a testator needs to understand what a Will is (e.g. it only operates on death), they need to know roughly what assets and liabilities they have, they need to know (without any coaching) what friends and relatives they have whom they might be expected to benefit, and, finally, they must not be suffering from some disease of the mind which poisons their affections and leads them to make a Will which they would otherwise not have made.
Reasonable Financial Provision
Usually this will be such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance. The Court must consider:
  • the financial needs and resources now and in the future of the applicant
  • the needs and financial resources now and in the future of any other beneficiary of the Will or intestacy
  • the needs and financial resources now and in the future of any other applicant
  • the deceased's obligations and responsibilities
  • the size and nature of the estate
  • the conduct of the parties
  • any disability
  • the age and duration of any marriage
  • the contribution by the applicant to the family
  • any other matter the Court thinks relevant
Rights of residuary beneficiaries
  • "Due administration of the Estate".
  • To see the Estate Accounts.
  • To receive an income tax deduction certificate.
  • May have a right to be consulted before appropriations or distributions.
  • To approve a solicitor's fees unless there is an Independent Executor.
Latin word for a Will.
Testamentary capacity
The mental capacity to make a testament (Will).
A male person making a Will.
Little-used Latin word, meaning a female person making a Will.
Undue influence re Wills
A person is allowed to influence testators to benefit him or her in their Wills. It may be distasteful but it is not illegal to persuade a testator. What is illegal is undue influence, where pressure is put on, e.g. with threats, such that they override the testator's own intentions. Note it is very hard to bring a case of undue influence, usually because of the lack of evidence (the testator being dead). Do not waste time on a claim of undue influence unless you have really clear evidence.
Undue influence re lifetime gifts
Curiously, the law on undue influence is very different if a gift is made in someone's lifetime – there is actually a legal presumption of undue influence if someone makes a large gift to someone in a fiduciary capacity (e.g. a trusted adviser) without an obvious reason.