WILLS AND ESTATES GLOSSARY
Abatement: in estates law, gifts cannot be granted until the debts of an estate are paid. When a gift cannot be granted because it must go towards paying the estate's debts, the gift is said to "abate".
Administrator: the person or persons appointed to administer an estate (wrap up their affairs and dispose of property and possessions) where a person dies intestate (without a Will)
Attestation Clause: a clause found at the end of a Will in which the witness to a Will affirms certain facts regarding the making of the Will by the Testator and signs their names
Beneficiaries: the people who receive property or possessions under a Will
Bequeath: to leave something by Will
Bequest: a gift of personal property under a Will (usually does not refer to money, which would be known as a Legacy)
Capacity: see Testamentary Capacity
Certificate of Appointment of Estate Trustee with a Will (formerly known as letters probate): a document issued by the court appointing a person named in a Will as the Estate Trustee and verifying that the Will is valid.
Certificate of Appointment of Estate Trustee without a Will: a document issued by the court appointing a person as an Administrator where the deceased does not have a Will.
Child: defined by the Succession Law Reform Act as including a grandchild and a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody. This definition includes a child conceived before and born alive after the parent’s death.
Codicil: an attachment or amendment to a previously executed Will. Amending the Will via Codicil avoids having to rewrite the entire Will. As with a Will, each codicil must be signed, dated and witnessed
Consanguinity: the characteristic of being a descendant of the same ancestor as another person
Constructive Trust: a remedy ordered by the court where there is evidence that one party would be unjustly enriched at the expense of another party if the latter was not given some extent of ownership over certain property. The criteria for a constructive trust are an enrichment towards the party who owns an asset or assets, a resulting deprivation to the other party and the absence of a legal justification for the enrichment and deprivation, such as a contract or gift.
Crown Administration of Estates Act:
Devise: a gift of real property under a Will.
Devisee: the person to whom a gift of real property is made under a Will.
Estate: a person's property and possessions
Estates Administration Act: Ontario legislation that governs the administration of an estate on intestacy (where the deceased does not have a Will)
Estate Administration Tax (formerly known as probate fees): the tax that a deceased person must pay on his or her estate.
Estate Administration Tax Act, 1998:
Estate Trustee (formerly known as an executor or executrix):
Executor or Executrix: the outdated title of a person appointed to administer the estate of a person who dies with a Will. The current title is "Estate Trustee".
Holograph Will: is a special type of Will recognized in Ontario law which is written by the Testator in his or her own writing. This type of Will does not require some of the formalities of an ordinary Will. See our page on Holograph Wills for more information.
International Will: a form of Will that is recognized in countries that have ratified the Convention providing a Uniform Law on the Form of an International Will. For example, a Will that is made in compliance with Ontario's Succession Law Reform Act will be recognized in countries that have ratified the Convention.
Inter vivos Gifts: a gift of property made during the life of the person making the gift
Inter vivos Trust: a trust set up during the life of the person making a gift
Intestacy: refers to the situation in which a person dies without a valid Will
Intestate: the term used to describe the situation in which a person dies without a valid Will (i.e. Mr. Jones died intestate). The term is also used to refer to the person who has died without a Will.
Issue: refers to a person's children or descendants. The term includes descendants conceived before and born alive after the person's death
Joint Tenancy: occurs when two or more people own a property in equal proportions, and when one of joint tenant dies, their interest goes to the surviving joint tenants. This is in contrast to a tenancy in common, where each owner retains their interest on death.
Joint Will: a special type of Will that applies to two people (typically spouses). In contrast to reciprocal or mirror Wills, in which there are two Wills, the Joint Will is a single document. Special care should be exercised when contemplating a Joint Will because of the potential for a surviving spouse to be locked into the existing obligations, even decades after their former spouse has passed away.
Lapse: occurs where a Will makes a beneficiary predeceases (dies before) a Testator. According to Ontario law, if the beneficiary is a child, grandchild, brother or sister of the Testator, the gift would go to their issue (if any).
Legacy: a gift of personal property under a Will (usually refers to money).
Legatee: the person to whom a gift of personal property (usually money) is made under a Will.
Letters Probate: former term for Certificate of Appointment of Estate Trustee with a Will (see definition above).
Living Will (also known as an Advance Directive): a document stating what you want to happen if you become disabled and can’t communicate your wishes about treatment. It's quite common, for example, for people to write a “Living Will” saying that they do not want to be kept alive on artificial life supports if they have no hope of recovery.
Matrimonial Home: a home that is owned by either or both spouses and is ordinarily occupied by the family at the time of separation. According to Ontario law, when your marriage ends, or where a deceased person's surviving spouse elects for an equalization payment, the full value of the matrimonial home must be shared. This is the case even if one of the spouses owned the home before they were married, received it as a gift or inherited it.
Office of the Public Guardian and Trustee:
per capita by Generation Distribution: in contrast to a per stirpes distribution, a per capita by generation distribution is one in which each beneficiary at a given generation obtains an equal share, regardless of the branch. For example, let's imagine that a testator (A) has three children (B, C and D). B predeceases A but has left two children (B1 and B2). C has also predeceased A but has left three children (C1, C2 and C3). According to a per capita by generation distribution, D would receive one-third of A's estate and the remaining two-thirds would be split equally among B1, B2, C1, C2 and C3. See the definition of per stirpes distribution below.
per stirpes Distribution: a distribution of an estate in which each branch of the family is to receive an equal share. If the first generation of a branch predeceases the Testator, that share would be distributed among the heir's issue in equal shares. For example, let's imagine that a testator (A) has three children (B, C and D). B predeceases A but has left 2 children (B1 and B2). According to a per stirpes distribution, each branch would receive one-third of A's estate. This means that C and D would receive one-third each, while B1 and B2 would split B's share (one-third) equally, giving each one-sixth of A's estate. See the definition of per capita by generation distribution above.
Perpetuities Act: legislation which restricts the ability of a Testator to bind future generations
Personal Representative: commonly, this term is used to refer to the Estate Trustee or Administrator (see definitions above and below). According to the Estates Administration Act and Succession Law Reform Act, a personal representative is an executor, an administrator, or an administrator with the will annexed.
Power of Attorney for Personal Care: a document that appoints a person to make personal decisions on your behalf regarding housing or health care
Power of Attorney for Property: a document that appoints a person to manage your financial affairs for a period of time (typically used when a person is away from the country or otherwise unavailable for a period).
Preferential Share: when a person dies intestate, the laws of intestacy dictate that the deceased's spouse is entitled to a "preferential share" of the estate. When the estate is $200,000 or larger, the surviving spouse will be entitled to a preferential share of $200,000 as well as a portion of the residue (remaining estate), depending on how many issue there are.
Probate: a term formerly used to describe the process of appointing an Estate Trustee (formerly executor or executrix) and proving the vaidity of a Will
Proxy Directive: a term that is sometimes used to describe a document that combines a Living Will with a Power of Attorney for Personal Care.
Reciprocal Will (also known as a Mirror Will): an arrangement in which two people (typically spouses) have identical wills which grant everything to the surviving spouse, and thereafter to the children or a named beneficiary.
Resulting Trust: a remedy that is created where a person whose name is not on title to a property is deemed by the court to have an ownership interest in the property, based on the person's contribution towards acquiring or maintaining the property
Spouse: under the Succession Law Reform Act, a spouse refers to someone who is legally married
Substitute Decisions Act: Ontario legislation that establishes the criteria for determining whether a person has the ability to make important decisions about his or her own well-being
Succession Law Reform Act: Ontario legislation that governs a number of estate law matters.
Testamentary Capacity: in order for a Will to be valid, the Testator must be of "sound mind," which means he or she must be aware of the nature and extent of his or her property and the nature of his or her family or other beneficiaries. The Testator must be aware that by signing the Will, he or she is making a final disposition of his or her property
Testate: the status of dying with a valid Will
Testator or Testatrix: a term used to describe a person who makes a Will. A female Testator is sometimes referred to as a Testatrix.
Undue Influence: a legal doctrine concerning an imbalance of power in which one person can take advantage of another. Relevant in estates law because a Testator must not have been unduly influenced in the making and signing of a Will for the Will to be valid.
Will (also known as a Last Will and Testament or Last Testament): a legal document that sets out the last wishes of the testator (person making and signing the Will). A Will usually addresses how the Testator's property and possessions will be distributed and who will be responsible for ensuring that his or her wishes are carried out.