Terms Glossary

Commercial Litigation
Word or Phrase Description
ABN Australian Business Number which is a unique identifier issued to a person or an entity carrying on an enterprise by the Australian Business Register (“ABR“) operated by the Australian Taxation Office (“ATO“).
ACN Australia Company Number which is a unique nine digit number issued to a company by the Australian Securities and Investments Commission (“ASIC“).
Acquisition The purchase of an asset.
ASIC (Australian Securities & Investment Commission) Independent Australian government body that acts as Australia’s corporate regulator.
Bare Trust A basic trust in which the beneficiary has a right to both income and capital and may call for both to be remitted into his own name. Often used for self managed superfund borrowings.
Business Name A business’ registered trading name registered with ASIC.
Buy Sell Options An agreement between co-owners of a business granting each other options to buy or sell their respective interests upon the occurrence of specified event (often death or incapacity).
Charge To grant a security interest over the assets of a company.
Constitution Rules of a company.
Contract A formal, legally binding document between two or more parties.
Discretionary Trust A trust where the trustee determines to whom income and capital are distributed pursuant to the terms of the trust deed. Also referred to as a family trust.
Due Diligence Investigation of a business or company prior to purchase.
Fiscal Year An accounting period of 12 months (normally 1 July to 30 June).
Franchise A right to carry on a business using another’s business model under an agreement.
Franchise Agreement An agreement setting out the terms of conditions between a franchisor and franchisee for business operations.
Franchisee An individual or company that is granted a licence to conduct operations under a franchisor’s business model.
Franchisor A company that allows an individual (franchisee) to operate at a location under their business name and model.
Going Concern A business that will continue to operate after the sale from a seller to a buyer.
Guarantee To provide a promise or assurance that obligations will be fulfilled.
Guarantor A person who provides a guarantee.
Hybrid Trust A trust which mixes elements of a discretionary trust and a unit trust so that a beneficiary has a fixed entitlement to some part of the income or capital of the trust but the trustee has discretion to distribute some part of the income or capital.
Indemnity An agreement where one person indemnifies another for certain acts or omissions.
Joint Venture An agreement for two or more parties to undertake a project.
Lease The right to occupy premises with exclusive possession.
Liquidation The process of collecting and converting assets to money to pay debts, while in the process of closing the business down.
Loan Agreement A contract between a borrower and a lender which sets out the terms of conditions agreed by both parties.
Mortgage An agreement that creates a charge over land between a lender and borrower.
Partnership An agreement between parties to carry on a business in common with a view to make a profit.
Security An asset that is pledged to secure a promise or obligation.
Shares A fractional part into which the capital stock of a company is divided.
Shareholder The owner of shares in a company.
Shareholders Agreement Agreement between shareholders in a company.
Stakeholder A person, group or organisation that has an interest in an organisation such as clients, employees and shareholders.
Turnover Monies received by a business within a certain time-frame.
Unit Trust A unit trust is a trust structure that allows persons to hold assets and provide profits that go straight to individual unit owners instead of reinvesting them back into the general trust fund.
Vendor A person or company offering something for sale.
Walk in walk out An arrangement where a buyer of a business takes over all existing stock and all debtors and creditors on the settlement day.
Warranty A written promise that a state of affairs exists.
Winding Up See “Liquidation”.
Corporate & Business Law
Word or Phrase Description
ABN Australian Business Number which is a unique identifier issued to a person or an entity carrying on an enterprise by the Australian Business Register (“ABR“) operated by the Australian Taxation Office (“ATO“).
ACN Australia Company Number which is a unique nine digit number issued to a company by the Australian Securities and Investments Commission (“ASIC“).
Acquisition The purchase of an asset.
ASIC (Australian Securities & Investment Commission) Independent Australian government body that acts as Australia’s corporate regulator.
Bare Trust A basic trust in which the beneficiary has a right to both income and capital and may call for both to be remitted into his own name. Often used for self managed superfund borrowings.
Business Name A business’ registered trading name registered with ASIC.
Buy Sell Options An agreement between co-owners of a business granting each other options to buy or sell their respective interests upon the occurrence of specified event (often death or incapacity).
Charge To grant a security interest over the assets of a company.
Constitution Rules of a company.
Contract A formal, legally binding document between two or more parties.
Discretionary Trust A trust where the trustee determines to whom income and capital are distributed pursuant to the terms of the trust deed. Also referred to as a family trust.
Due Diligence Investigation of a business or company prior to purchase.
Fiscal Year An accounting period of 12 months (normally 1 July to 30 June).
Franchise A right to carry on a business using another’s business model under an agreement.
Franchise Agreement An agreement setting out the terms of conditions between a franchisor and franchisee for business operations.
Franchisee An individual or company that is granted a licence to conduct operations under a franchisor’s business model.
Franchisor A company that allows an individual (franchisee) to operate at a location under their business name and model.
Going Concern A business that will continue to operate after the sale from a seller to a buyer.
Guarantee To provide a promise or assurance that obligations will be fulfilled.
Guarantor A person who provides a guarantee.
Hybrid Trust A trust which mixes elements of a discretionary trust and a unit trust so that a beneficiary has a fixed entitlement to some part of the income or capital of the trust but the trustee has discretion to distribute some part of the income or capital.
Indemnity An agreement where one person indemnifies another for certain acts or omissions.
Joint Venture An agreement for two or more parties to undertake a project.
Lease The right to occupy premises with exclusive possession.
Liquidation The process of collecting and converting assets to money to pay debts, while in the process of closing the business down.
Loan Agreement A contract between a borrower and a lender which sets out the terms of conditions agreed by both parties.
Mortgage An agreement that creates a charge over land between a lender and borrower.
Partnership An agreement between parties to carry on a business in common with a view to make a profit.
Security An asset that is pledged to secure a promise or obligation.
Shares A fractional part into which the capital stock of a company is divided.
Shareholder The owner of shares in a company.
Shareholders Agreement Agreement between shareholders in a company.
Stakeholder A person, group or organisation that has an interest in an organisation such as clients, employees and shareholders.
Turnover Monies received by a business within a certain time-frame.
Unit Trust A unit trust is a trust structure that allows persons to hold assets and provide profits that go straight to individual unit owners instead of reinvesting them back into the general trust fund.
Vendor A person or company offering something for sale.
Walk in walk out An arrangement where a buyer of a business takes over all existing stock and all debtors and creditors on the settlement day.
Warranty A written promise that a state of affairs exists.
Winding Up See “Liquidation”.
Criminal Law
Word or Phrase Description
Affray A person who takes place in a fight that occurs in a private or public space, where people may be present, or alarms the public is liable for affray, as per section 72 of the Criminal Code Act 1899 (Qld).
Aggrieved Person making the DVO application.
Appeal To make an application to a higher court to review the decision made by a lower court or tribunal.
Assault An offence of causing physical injury to another.
Assault Occasioning Bodily Harm For a charge of assault occasioning bodily harm, it must be shown that a person was assaulted, and that the person has suffered an injury that has affected their health or comfort.
Attempted Murder Attempted murder is defined as attempting to unlawfully kill another human being or conspiring to kill another human being. It includes failed attempts to murder with intent.
Bail Being able to remain in the community rather than in custody when awaiting a criminal matter to be heard before a court
Bail Application When you are charged with a criminal offence you may find that you are not automatically released from the police station after being arrested and charged. If bail is not granted by the police when you are arrested you will need to make an application for bail in front of a magistrate.
Beyond Reasonable Doubt The standard that must be meet by prosecution to successful convict the defendant, with all evidence fully satisfied, facts proven and guilt established.
Burglary The Criminal Code Act 1899 (Qld) states that a person who breaks any internal or external part of a dwelling or premises, or opens a dwelling or premises by any means (e.g. unlocking, opening, pushing) is said to break into that dwelling or premises.
Committal Mention Held at a Magistrates’ Court. This is a short administrative hearing to clarify the number of witnesses and the length and date of the committal hearing.
Common Assault Section 245 of the Criminal Code Act 1899 (Qld) provides that anyone who ‘strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if obtained by fraud’ or threatens a person with the before mentioned is liable for assault. For a charge of common assault, it does not need to be shown that any bodily harm or injury was caused.
Criminal/defence lawyer Person who represents accused people.
Custody Confinement after being arrested.
Dangerous Driving Dangerous operation of a motor vehicle is defined under section 328A of the Criminal Code Act 1899 (Qld) as “a person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour”.
Demerit Points A demerit point system that allows the allocation of demerit points that enables you to hold a drivers licence. Demerit points can be added or subtracted from your drivers licence. The loss of multiple demerit points can result in the cancellation of your licence.
District Court The District Court deals with serious criminal offences, such as rape, armed robbery and fraud. This court also hears appeals from cases decided in the Magistrates Court and disputes regarding amounts between $150,000 and $750,000.
Domestic Violence Order (DVO) A DVO is an order that prohibits one person from committing domestic violence against another person, or anyone else stated, such as children, family and friends.
Drink Driving The offence of operating a vehicle and having a blood alcohol level higher than the allowable amount.
Driving While Disqualified Driving while disqualified occurs when you continue driving on the roads after your licences has been disqualified by a court or by the Department of Transport and Main Roads. This offence is dealt with under section 78 of the Transport Operations (Road Use Management) Act 1995 (Qld).
Drug Driving The offence of driving with drugs present in your system. There is a “zero tolerance” approach to drug driving in Queensland. If you are found to have any traces of drugs present, you will be facing a drug driving charge.
Drug Possession A person is liable for dangerous drug possession if they have dangerous drugs in their custody and police can prove that the drugs are within their physical domain.
Drug Production If a person has been involved in the production of a dangerous drug then they are liable to be charged accordingly. To be liable a person must have been involved in the preparation, cultivation, packaging, harvesting or any other stage of production of a dangerous drug.
Drug Supply In accordance with section 6 of the Drug Misuse Act 1986, a person who unlawfully supplies a dangerous drug to another, whether or not the other person is in Queensland, is guilty of a crime. Supplying dangerous drugs is a similar offence to trafficking although police will not need to prove that transactions took place for a certain period.
Drug Trafficking Drug trafficking is dealt with under section 5 of the Drug Misuse Act 1986. The act stipulates that anyone who ‘carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime’.
Exhibit A document or item produced in court for the purpose of becoming part of the evidence in a trial.
False imprisonment Confinement of a person without the correct legal permissions.
Fraud An offence of gaining an unauthorised financial benefit. A person is guilty of fraud if they dishonestly use the property of another, obtain property from another, induce another to transfer property to any person, force a person into doing an act which they are lawfully entitled to do, or leaves without paying out a transaction that is owing with intention to avoid payment.
Grievous Bodily Harm To cause grievous bodily harm to another person means to seriously disfigure a person, cause injury that could endanger or is likely to endanger life, cause permanent injury to health, or cause the loss of a distinct organ.
Hooning ‘Hooning’ covers a range of offences including driving a defective vehicle, excessive noise, burnouts and street racing. If it is a person’s first offence police may impound the offending vehicle for up to 48 hours. Beyond the first offence the courts generally impose a fine. If a person continues to hoon they may face losing their vehicle to the state.
Indecent treatment An offence of touching/interfering with children under the age of 16.
Indictment The formal document setting out the accused’s name, charge/s laid and particulars regarding the offence/s. Once this document has been tendered to court, legal proceedings commence.
Jail The institution prisoners are kept.
Judgment The final orders made by a court after a trial.
Juror A member of the jury.
Jury A panel of people, selected from the public, who decide the innocence or guilt of a person on trial.
Legal Aid Legal assistance to persons otherwise unable to afford legal representation, with monies allocated to cover legal fees from a public fund and a lawyer appointment from a panel of eligible lawyers.
Magistrates Court The Magistrates Court is the lowest level court in the court hierarchy. This is the court where criminal, traffic and civil cases are heard, in the first instance.
Manslaughter A person is guilty of manslaughter if they have unlawfully killed another person in circumstances without intent, and it is shown there are no defences applicable.
Mention Date The first day a criminal matter will be heard in the Magistrates Court.
Mens Rea Refers to a person’s criminal intent and their awareness of the fact their conduct is/was criminal.
Murder Murder is defined as unlawfully killing another person under the following circumstances:
· the offender intents to kill or cause grievous bodily harm to the person killed or some other person, and
· the offender intends to stop the life of another through wilfully stopping the breathing of a person.
Negligent Acts Causing Harm Negligent acts causing harm are addressed in sections 328 of the Criminal Code Act 1899 (Qld). This provides: “Any person who unlawfully does any act, or omits to do any act which is a person’s duty to do, by which act or omission bodily harm is actually caused to any person is guilty of a misdemeanour.”
Obstruct police If a person obstructs, hinders or interferes with a police officer while he or she is trying to execute his or her duty they are liable for assault or obstruct on a police officer. In order to be liable for assault on a police officer, in addition to the above criteria for assault, it must be proven that a person acted towards a police officer who was, at the time of the incident, executing his or her role as a police officer.
Penalty The punishment imposed for breaking a law, rule or contract.
Pleading guilty Admitting to committing an offence.
Probation A sentence that involves good behaviour and supervision by a probation office with defined reporting conditions for a specified time period.
Prosecution Lawyers in a trial who try to prove that a person accused of committing a crime is guilty of that crime.
Protection order See Domestic Violence Order.
Public nuisance The offence of acting offensively in public or committing an act that interferes with the rights of the public in general
Rape The offence for having non-consensual sex.
Recidivism The likelihood of a person to re-offend.
Recognisance A security by which a person undertakes before a court or magistrate to observe some condition, especially to appear when summoned.
Remand/Remand In Custody To be held in custody up until the court hearing.
Respondent Person against who the DVO has been taken out against.
Robbery See Stealing.
Special Hardship Licence A special hardship licence (or special hardship order) is a type of restricted licence available when you have received more than two demerit points when on a good driving behaviour licence or exceeded the speed limit by more than 40km/h.
Stealing Section 391 of the Criminal Code Act 1899 (Qld) states that a person who ‘fraudulently takes anything capable of being stolen or fraudulently converts the person’s own use or to the use of any other person anything capable of being stolen’ is guilty of stealing a thing.
Supreme Court The Supreme Court is the highest court in the court’s hierarchy and includes the trial division and the Court of Appeal. Serious criminal cases are heard in this court, including murder and manslaughter. Civil matters regarding amounts over $750,000 are also heard in this court.
Theft See Stealing.
Testimony A formal statement provided to the court.
Trial The formal process where your case is heard before a judge and jury in a court of law.
Violent Offences Violent offences include:
· assault occasioning bodily harm,
· negligent acts causing harm,
· affray (fighting in public/privately),
· assault or obstruct a police officer,
· serious assaults (including a police or public officer),
· grievous bodily harm,
· attempted murder,
· murder,
· manslaughter, and
· any other offence of violence.
Witness A person who sees something take place.
Work Licence An application made to the court to enable you to obtain a licence to drive your vehicle for work purposes only. Work licences have strict requirements that must be complied with.
Family & De Facto Law
Word or Phrase Description
Access Old term for visitation with a child.
Adoption Formal process to bring a child into a family unit.
Adjourn To postpone a court hearing until a later date.
Affidavit A written statement of facts by a party or witness.
Airport Watch List Order An order from the court to the Federal Police to place a child’s name in their system so the police are notified if that person attempts to leave the country.
Binding Financial Agreement (“BFA”) Legally binding document which divides your assets.
Child Protection A matter involving the Department of Child Safety removing a child from a parents care.
Child representation The role of the Independent Children’s Lawyer i.e. to work out the best interests of a child.
Child Support The responsibility to financially support a child.
Child Support Agreement A legally binding document which changes your child support payments by consent with the other parent.
Conciliation conference A mediation conducted by the court in property settlement matters.
Consent Order An agreement between parties approved by the court and then becomes a court order.
Contact Newer term for access – spending of time with a child.
Custody Old term for the primary care of a child. Who the child lives with.
De Facto Non-married couples living together in a “married type” manner.
Divorce The formal ending of a marriage. Divorcing your husband/wife.
Divorce Order The formal order from a court to end a marriage.
Domestic Violence Order (DVO) A DVO is an order that prohibits one person from committing domestic violence against another person, or anyone else stated, such as children, family and friends.
Ex Parte Hearing The event where one party is not present at the hearing and has not been given formal notice of the hearing. This usually occurs in urgent cases.
Family Report An interview process which involves the parents of the child and significant others, designed to provide assistance to a court on working out the best interests of a child and how to support them. This report is provided in written form.
Family Violence Violent, threatening behaviour that control a member of the family, or causes the family member to be fearful.
Filing The lodgement of documentation with the registry of a court.
Financial Agreement A formal written agreement between two parties which sets out how the parties would like to divide their financial resources in the event of separation.
Final Order An order made by the court bringing a matter to an end.
First return date The first date after an application is filed with a court.
Hague Convention An international agreement between certain countries around the world regarding what occurs if a child is taken from one of these countries to another.
Independent Children’s Lawyer.(“ICL”) An Independent Children’s Lawyer represents a child’s best interests and presents information and recommendations to the court about a child’s welfare.
Injunction An order from the court requiring a person to do, or refrain from, something.
Interim hearing A process whereby the Court considers the application and response documentation of each party, hears submissions and makes a decision which is not the final decision.
Interim Order An order made by the court until another order is made, or the final order is made.
Lives with Current term for where a child spends most of their time.
Mediation A round table type discussion involving the parties and sometimes their lawyers, designed to try and bring about an agreement with the assistance of an independent person.
Mediator A qualified person who facilitates the discussion at a mediation.
Mention A court date that is used to check progress of a matter.
Parental Responsibility(equal shared) Guardianship, responsibility for the long term decisions concerning a child such as education, religion.
Parenting Plan A less formal agreement between parents about the day to day arrangements for the child.
Property Pool The shared assets and liabilities to be divided up.
Property Settlement The arrangement, for de facto or married couples, whereby the court decides who receives what portion of the property pool they have accumulated during the relationship. Dividing your assets.
Residence Newer term for custody – primary residential care of the child.
Separation When parties no longer wish to live together or be seen as a couple or husband and wife.
Sole occupancy/Ouster order An application designed to secure the residential arrangements for one party, which involves the other party being formally told to leave the residence and find somewhere else to live.
Spends time with Formerly access – visitation or spending of time with the other parent.
Spouse A husband or wife, either current or former.
Spousal Maintenance Spouse maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.
Superannuation splitting A formal process whereby a portion of one party’s superannuation is split off to the other party’s superannuation fund.
Surrogacy Arrangement whereby someone independent from a couple carries a baby to term, altruistically or commercially.
Property & Development

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Traffic Law
Word or Phrase Description
Abatement Official reduction, allowance or rebate.
Access Rights The right to enter and exit a property over an adjoining property.
Ad Volorem In proportion to value.
Arm’s Length A transaction completed on a commercial basis, with no personal interests or relationships between the buyer and seller.
Asset & Liabilities Statement A one page summary of the borrowers’ assets and liabilities in order to determine net equity for credit purposes.
Assignment of Contract The transfer of a contract to a third party.
Body Corporate A body run by the owners of strata title schemes responsible for maintaining and managing shared, common property such as carparks and gardens.
Building Format Plan Deals with the type of subdivision that usually occurs within a building.
Caveat Notification of an interest in the property from someone other than the owner.
Caveat Emptor Latin term meaning “let the buyer beware”.
Certificate of Title Official documentary confirmation of ownership of land.
Word or Phrase Description
Bail Being able to remain in the community rather than in custody when awaiting a criminal matter to be heard before a court.
Custody Confinement after being arrested.
Dangerous Driving Dangerous operation of a motor vehicle is defined under section 328A of the Criminal Code Act 1899 (Qld) as “a person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour”.
Demerit Points DA demerit point system that allows the allocation of demerit points that enables you to hold a drivers licence. Demerit points can be added or subtracted from your drivers licence. The loss of multiple demerit points can result in the cancellation of your licence.
Drink driving The offence of operating a vehicle and having a blood alcohol level higher than the allowable amount.
Driving While Disqualified Driving while disqualified occurs when you continue driving on the roads after your licences has been disqualified by a court or by the Department of Transport and Main Roads. This offence is dealt with under section 78 of the Transport Operations (Road Use Management) Act 1995 (Qld).
Drug driving The offence of operating a vehicle and having a blood alcohol level higher than the allowable amount.
Hooning ‘Hooning’ covers a range of offences including driving a defective vehicle, excessive noise, burnouts and street racing. If it is a person’s first offence police may impound the offending vehicle for up to 48 hours. Beyond the first offence the courts generally impose a fine. If a person continues to hoon they may face losing their vehicle to the state.
Legal Aid Legal assistance to persons otherwise unable to afford legal representation, with monies allocated to cover legal fees from a public fund and a lawyer appointment from a panel of eligible lawyers.
Magistrates Court The Magistrates Court is the lowest level court in the court hierarchy. This is the court where criminal, traffic and civil cases are heard, in the first instance.
Prosecution Lawyers in a trial who try to prove that a person accused of committing a crime is guilty of that crime.
Special Hardship Licence Legal assistance to persons otherwise unable to afford legal representation, with monies allocated to cover legal fees from a public fund and a lawyer appointment from a panel of eligible lawyers.
Special hardship license A special hardship licence (or special hardship order) is a type of restricted licence available when you have received more than two demerit points when on a good driving behaviour licence or exceeded the speed limit by more than 40km/h.
Speeding Driving in excess of the speed limit.
Work license An application made to the court to enable you to obtain a licence to drive your vehicle for work purposes only. Work licences have strict requirements that must be complied with.
Wills & Estates

The laws that determine how an estate will be distributed when there is no will. These rules are contained in the Succession Act 1981.

Word or Phrase Description
Ademption Occurs when property gifted in a will is no longer in the testator’s estate at the time of the testator’s death.
Administration The process of collecting the assets, paying the debts, and distributing the estate in accordance with the will (or, if there is no will, in accordance with the intestacy rules).
Advance Health Directive A special form of document that gives directions about a person’s health care wishes.
AHD See Advance Health Directive.
BDBN See Binding Death Benefit Nomination.
Beneficiary A person who is entitled to a portion of an estate or trust.
Binding Death Benefit Nomination A direction that obligates the trustee of a superannuation fund to pay superannuation death benefits to a particular person or to the estate. Not every superannuation fund recognises a BDBN.
Blended Family A family consisting of two or more families after getting remarried after divorce. Blended families can raise particular issues with estate planning and estate disputes.
Business Succession Planning Making sure that your business is able to carry on without you.
Challenging a will See “Contesting a will”.
Child A person under the age of 18 years, including adopted children or step-children. It also refers to adult children, who have rights in relation to their parents’ estates.
Codicil A document that amends a will. It must be properly signed and witnessed, like a will.
Construction of a will How a will is construed (interpreted). In other words, the meaning of the will. While probate is concerned with determining what the will says, construction is about determining what the will means. If there is uncertainty about the meaning of a will, an interested party can apply to the Supreme Court to have the will construed.
Contested probate Also called “Probate in Solemn Form”. When there are doubts about the validity of a will, the court can be asked to determine whether a particular will is valid. The most common basis for contesting the validity of a will is that there is doubt about the testamentary capacity of the person who made the will. Another basis for contesting the validity of a will is that the will was made as a result of undue influence. The validity of a will may also be contested on the basis of lack of knowledge and approval.
Contesting a will The main ways of contesting a will are by contested probate or by a family provision application.
De facto partner A de facto partner may be entitled to a share of an estate under the intestacy rules. A de facto partner may also be entitled to make a family provision application. For the purposes of the Succession Act 1981, the definition of de facto partner is found in section 32DA of the Acts Interpretation Act 1954 (Qld)
Deductible Gift Recipient (“DGR”) A DGR is recognised by the Australian Tax Office as a charitable entity that is entitled to receive income tax deductible gifts. Your will may gift part of your estate to a DGR.
Donatio mortis causa Latin phrase describing a binding verbal gift, where the gift is made in expectation of imminent death. Plural: donationes mortis causa. A will must be in writing, but this type of gift can be verbal.
Duress The use of threats, violence and other constraints to influence someone into doing something against their will or better judgement.
Enduring Power of Attorney A special form of document authorising someone to act on behalf of another person. It is “enduring” because it continues to be effective when the person making it no longer has capacity to manage their own affairs.
EPA See “Enduring Power of Attorney.”
Estate All of the assets and liabilities of a deceased person. The word can also apply to the affairs of a living person, but it is not commonly used in that context except in a bankruptcy.
Estate Administration When you are the executor of a will and you need help attending to paying the final bills and distributing the assets to the beneficiaries, we are able to provide this service.
Estate Planning The process of anticipating and arranging, during a person’s life, for the management and disposal of that person’s estate during the person’s life and after death.
Executor/ Executrix/ Executrices A person appointed by a will to administer a deceased person’s estate. Executrix is the feminine version, and “executrices” is the feminine plural. Nowadays, “executor” is used as a term that is gender-neutral.
Execution The formal process of signing your will and having it witnessed.
Family Provision Application The spouse, children (including step-children), and some categories of dependants of a deceased person may be entitled to claim further provision from an estate, overriding the terms of a will or the intestacy rules. In Queensland, this type of claim can be brought in the District Court or the Supreme Court, depending on the amount of provision claimed. The court may override the will (or the intestacy rules) if the applicant shows a need for further provision from the estate.
FPA See “Family Provision Application”.
Further provision See “Family Provision Application”.
Guardianship See “Testamentary Guardian.”
Infant At law, an “infant” is anyone who is not an adult.
Intestacy An estate where there is no will.
Intestacy Rules The laws that determine how an estate will be distributed when there is no will. These rules are contained in the Succession Act 1981.
Inadequate Provision Where a person has left by their will (or intestacy) insufficient for the needs of their spouse, child or dependant.
Joint tenancy A form of property ownership between two or more people, where the survivor/s automatically take complete ownership of the property on the death of any of the co-owners. In contrast, see tenancy in common.
Knowledge and approval For a will to be valid, the testator must know and approve what is in the will.
Letters of administration on intestacy Where there is no will, the court may appoint someone to administer the estate in accordance with the intestacy rules. The court’s authorisation is called letters of administration.
Letters of administration with the will annexed Also known by the Latin phrase “Letters of administration cum testamento annexo.” When the executor does not obtain probate, another person may be appointed by the court (by being granted letters of administration) to administer the estate in accordance with the will.
Mediation Resolving an estate dispute (most commonly a Family Provision Application) with the use of a third party as a mediator between the parties.
Mutual wills Wills made in accordance with an agreement that the testators will leave their estates in a particular way.
No Win No Fee If you want to contest a will, we can consider the details of your claim, the number of other potential beneficiaries and the size of the estate and consider if we will act for you on a “no win no fee” basis.
Probate A document issued by the Supreme Court confirming the authority of the executor to administer an estate.
Probate in Solemn Form See “Contested probate”.
Reading of a will Formal meeting where a lawyer will discuss the will in detail for friends and family of the deceased. A reading of the will can occur before or after a funeral.
Revocation of a Will Cancellation of a will, generally by making a new will.
Rule in Saunders v Vautier The rule under which beneficiaries of a trust, if of full age sound mind and unanimous, may direct the trustees to end the trust and transfer the trust property to themselves as beneficiaries absolutely.
Rule against Perpetuities This rule requires that no interest in property is valid unless it vests (other than under a trust) not later than twenty-one years, plus the period of gestation, after some life or lives in being which exist at the time of the creation of the interest. More commonly, the period of 80 years applies. This rule ensures that a testator cannot make any provision regarding property that would impact the property long after the testator has died.
SMSF Self Managed Superannuation Fund. An SMSF is governed by its trust deed and by other relevant laws such as the Superannuation Industry (Supervision) Act 1993 (Commonwealth).
Solemn Form Probate See “Contested probate”.
Statutory Will An uncommon term for when a court approves the making of a will for someone who does not have testamentary capacity.
Succession Act 1981 This is the main statute that governs succession law in Queensland.
Succession Law The area of law that deals with inheritance upon death.
Superannuation Superannuation death benefits do not automatically form part of an estate. This will depend on whether the trustee of the superannuation fund exercises a discretion (or is obligated, pursuant to a binding death benefit nomination) to pay the superannuation to the estate.
Tenancy in Common A form of property ownership between two or more people, where a deceased owner’s share becomes part of his/her estate, which he/she is able to dispose of in a will. In contrast, see joint tenancy.
Testamentary Capacity Testamentary capacity refers to the mental capacity of a person to make a will. A person may have sufficient mental capacity to make a will even though they are physically incapacitated. The following is one way of stating the legal tests for testamentary capacity (paraphrasing the test in Banks v Goodfellow, as re-stated in Read v Carmody):

  • Did the testator have the capacity to understand the legal nature and significance of making a will?
  • Was the testator capable of being aware of, at least in general terms, the nature, extent and value of the testator’s property?
  • Was the testator capable of being aware of those who may reasonably be thought to have a claim upon the testator’s testamentary bounty, and the basis for, and nature of, the claims of such persons?
  • Did the testator have the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons?
  • Did the testator suffer from a condition (whether “mental illness” [or psychosis] in the strict sense, or any other form of “mental disorder”, including, but not limited to, deterioration in higher intellectual function, or dementia) which detrimentally affected the testator’s consciousness or sense of orientation, or which had brought about disturbances to the testator’s intelligence, cognition, thought content, thought processes, judgment and the like (whether or not that condition may be transient, or, if appropriately treated, reversible)?

If the testator fails any of those tests, then he/she does not have testamentary capacity.

Testamentary Guardian Person/s appointed by your will to look after your infant child/ren.
Testamentary Trust A type of trust created by your will.
Testamentary Discretionary Trust A testamentary discretionary trust is one where the trustee has the discretion to distribute capital and income in the same or differing proportions between a group of beneficiaries nominated in a will.
Testator/Testatrix A person who makes a will. Testatrix is the feminine version. Nowadays, “testator” is used as a term that is gender-neutral.
TFM Testator’s Family Maintenance application; same as FPA.
Trust A trust exists where the legal owner of property holds that property for the benefit of the beneficiaries of the trust.
Trustee An individual person or company who has control of property in trust with a legal obligation to administer it solely for the purposes specified in the trust.
Undue Influence When a person has been coerced into making a will, that will is invalid as it is said to have been made as a result of undue influence.
Will A revocable disposition of property, taking effect upon death.
Will-Maker See “Testator/Testarix.”
Witness Person who is present when you sign your will and sees you sign it.