The Contentious Probate Dictionary

The contentious probate dictionary 

The process of contesting a will or trust can be complex and there are many key phrases used that may be unfamiliar. Below is some of the main terminology that may be used during the course of a dispute.

A 

administration – the process of dealing with an estate or trust; it normally involved collecting in all assets, paying all debts and liabilities and making distributions to the beneficiaries  

administrator – a person dealing with the estate of somebody who has died: their entitlement does not arise from a Will 

ADR – Alternative Dispute Resolution – any means of resolving a legal dispute outside of court; for example: mediation / negotiation / early neutral evaluation  

affidavit – a written statement, which the maker needs to swear to be true in front of a notary or a commissioner for oaths  

appearance – reply to a warning  

assets – all monies, investments, land and property that a person owns 

B 

Beddoe Order – an order of the court granting personal representatives or trustees the permission to incur costs involved in bringing or defending a claim and to have such costs paid by the estate or trust 

beneficial interest – an entitlement to receive the benefit of an asset or a share of an asset (often a house or land), which may legally be held in someone else’s name 

beneficiary – a person who is entitled to receive money or property from a trust or an estate 

breach of trust – an act of trustees, which is in violation of their legal duties 

C  

caveat – a notice registered at the Probate Registry, which prevents a Grant of Probate or Letters of Administration from being issued 

CFA – commonly used abbreviation for Conditional Fee Agreement (“no win, no fee”) 

citation – a type of order made by the Probate Registry which requests a person to take specific steps; e.g. enter an appearance, take a grant 

codicil – a document amending or adding provisions to a Will 

Conditional Fee Agreement – an arrangement for funding of legal costs, where liability to pay part of all of your solicitor’s fees is made conditional upon your case being successful 

D  

devastavit – a wrong committed by a personal representative, who has caused the estate a loss by acting in violation of their duty 

discretionary trust – a type of trust, in which beneficiaries do not have a specified beneficial interest or entitlement; anything that the beneficiaries receive is at the discretion of the trustees 

distributions – payments (in cash or by way of transfer of an asset) made to beneficiaries of a trust or an estate 

E  

estate – all the wealth left by the deceased i.e. all their assets less their liabilities 

execute – sign in the presence of a witness, with an intention of giving effect to a document 

executor – a person named in a Will of the deceased, who will be responsible for the administration of the estate 

F  

fiduciary – someone who has undertaken to act on behalf of someone else in circumstances which give rise to a special relationship of trust and confidence; e.g. a carer is a fiduciary of a person they are caring for; a trustee is a fiduciary of the beneficiaries 

forged will – a Will that is not valid because it was signed by someone other than testator 

G 

grant – a document issued by the Probate Registry confirming who is entitled to administer the estate 

I 

Inheritance Act claim – also known as IHA claim or 1975 Act claim – a claim in which the claimant is asking for provision to be made for them out of an estate in circumstances where, in accordance with the Will or intestacy, they would have received less than what they say they need, the claim is brought under the Inheritance (Provision for Family and Dependants) Act 1975 

IHT – inheritance tax 

irrevocable – an act that cannot be reversed / undone  

intestate – a person who has died without leaving a Will 

J 

joint tenants – co-owners of a property, but none of them have a specified share; when one joint tenant dies, the property automatically passes to the other joint tenant via survivorship 

judgment – decision of the court 

K 

knowledge and approval – a requirement that the testator is aware of the contents of their Will and approves it 

L 

life interest – the entitlement of a life tenant 

life tenant – a person who has the right to benefit from an asset for as long as they live; e.g. the right to live in a property for the rest of their lives, or the right to receive an income generated by a capital sum for as long as they live 

letters of administration – the name for the Grant issued in relation to an intestate estate, i.e. a Grant issued to an administrator 

litigant – a person who is involved in court proceedings, either a claimant or defendant 

litigation friend – a person who conducts court proceedings on behalf of a child or protected party 

M 

mediation – a form of ADR, in which parties negotiate with each other via a mediator 

mediator – a person, not connected with any party to the dispute, who facilitates negotiation and helps parties to reach an agreement 

mirror wills – almost identical Wills, in which people leave their estates to each other 

mutual wills – Wills made two or more people who agree that they will not, in the future, revoke or amend their Wills without the other’s consent 

neutral stance – a position of a party to a dispute where they do not support either side of the argument; a party taking a neutral stance is prepared to be bound by any result that the others in the dispute may be able to agree between themselves or any order of the court 

O 

oath – a declaration in which the person making it swears it to be true before someone who is authorised to administer oaths 

P 

Personal Representative – either an executor or an administrator 

property – assets; may also be used to mean specifically land or a house 

probate – the process of administration of an estate where there is a valid Will 

proprietary estoppel – an equitable doctrine, in accordance with which the court will compensate a person who, to their detriment, relied on a promise made to them by another person 

pecuniary legacy – a fixed sum of money left in a Will to a particular person 

protected party – a person who by reason of mental disorder is not able to manage their own affairs 

Q 

quantum – value 

R 

remainderman – the person who is entitled to an asset only after life interest comes to an end 

renounce – to give up an appointment as an executor 

revocable – an act that can be reversed or undone 

S 

settlor – a person who sets up a trust, i.e. transfers their property to the trustees, so they hold it for the trust’s beneficiaries 

solicitor’s undertaking – a promise given by a solicitor which is binding and can be relied upon by third parties  

subpoena – a summons issued by the court compelling an individual to provide a document e.g. to deliver the original Will to court 

summons – a legal document issued by a court usually requiring attendance at court 

T 

testator – author of a Will; a person who makes a decision as to who they want to leave their assets to when they die 

trust – a legal structure, into which a person (a settlor or testator) decides to transfer the assets, so that those assets are held for the benefit of someone else (the beneficiaries) 

trustee – a person who operates a trust; the trustee legally owns the property transferred into the trust, but for the benefit of others (beneficiaries), not themselves 

trust instrument – a document creating the trust, setting out its terms 

tenants in common – co-owners of a property where each person owns a specified share; they are capable of gifting that share in e.g. a Will; survivorship does not apply 

U 

undue influence – influence exerted on someone, so they feel obliged to gift something they own in their Will or during their lifetime, not because they wish to but because they feel they have no other choice 

W 

warning – notice sent to the person who registered a caveat 

wasted costs – an award for costs incurred by the opponent but made against a party or the legal representative as a result of unreasonable or improper conduct on the part of that party or their legal representative 

Will – legal document, in which the author (testator) directs who should inherit their assets after they die 

will drafter – the person who prepares a Will on the instruction of the testator