Blog post by Fiona Lester
The words used in a Will are extremely important because they must convey the intention and wishes of the person making the Will as exactly as possible.
Some particular words which are used in Wills, such as ‘Testator’, ‘Beneficiary’, ‘Devise and Bequeath’ and ‘Executor and Trustee’ are not frequently used in every-day language. Although these words may seem archaic and complicated, they are part of the history of English laws and customs which have been absorbed into Australian law and which allow us to pass on different kinds of property to whoever we wish. The words, derived from Latin, have very precise meanings so that the intention of the person making the Will can be clearly understood.
A male person who makes a valid Will is the ‘Testator’. A female person who makes a valid Will is referred to as a ‘Testatrix’. The words come from the Latin word ‘testari’ (meaning ‘to testify’) – a word that was first used in Wills in the 14th century. If a person dies without making a Will, he or she is said to have died ‘intestate’.
Gifts of Property
The term ‘Bequeath’ will be used to refer to gifts of personal property (for example jewellery, furniture or motor vehicles). The word can also be used for gifts of real property (for example a house or land) but the more correct term for a gift of real property is ‘Devise’.
Any person who receives a gift under the terms of a Will is a beneficiary. The gift may be money (often known as a legacy), personal property or real property. An Executor can also be a beneficiary of the Will. A witness to a Will can now also receive property under the Will, but care needs to be taken so that there is no suggestion of undue influence.
Executor and Trustee
An Executor is responsible for arranging the funeral, obtaining a Grant of Probate (if required), for locating and collecting the property of the deceased and transmitting the property into the Executor’s name. A Trustee is a person who has legal ownership of property, but who is under a legal obligation to hold or use the property for a specific purpose. Once the property has been collected and the Executor is the legal owner, the Executor then becomes the Trustee of the property and must distribute it according to the directions in the Will. This is known as ‘administering’ the estate of the deceased person.