Glossary of legal terms


This article explains some of the common terms you might come across when you write your Will.

For ease of reference, terms are listed alphabetically but you can also press 'Ctrl + F' in your browser to search, or from a mobile device select 'Find in page' from the browser options menu:

Beneficiary

A person who receives something from a Will either as a residuary beneficiary or as a legatee.

Codicil

A legal document forming an annexure to an existing Will, by which you can modify or add to that existing Will, instead of making an entirely new Will.

Commissioner of oaths

A Commissioner of oaths is a person that is authorised to administer the oath. All attorneys are commissioners of oath. A commissioner of oaths is sometimes required for a Will to be validly signed.

Deceased estate

This is all the property belonging to the testator at the time of their death, of which they had power to dispose of by will.

Domicile

A domicile of choice is acquired by a person who is by law regarded as having the status of a major, when they are lawfully present in a particular place with the intention to settle there for an indefinite period. A minor (child) has no choice and will be domiciled in the place with which they are mostly connected. This is usually the place of the parental home with whom they reside.

Estate duty

Estate duty is levied at a flat rate of 20% for estates with a net asset value of more than R3.5 million. However, some deductions are allowed to reduce the value of the estate for estate duty purposes, for example, all property accruing to a surviving spouse and bequests to certain public benefit organisations.

Execution

This means signing and witnessing of your Will in such a way as to comply with the basic formalities of the Wills Act to make it legally valid.

Executor

The person you named in your Will to administer the assets found in your deceased estate in accordance with your wishes set out in your Will, after paying all the outstanding debts of your deceased estate and the costs of the testamentary administration.

Guardian

A person you can appoint in your Will to look after and be responsible for your children in the event of your death before they are 18 years old should their other parent also become deceased.

Intestate

Dying without a valid Will.

Issue

The term 'issue' means the children of the beneficiary and the further descendants of such children.

Legacy

A legacy is a specific asset or a sum of money or some incorporeal right which a testator bequeaths to a person known as a legatee. The legatee differs from an heir under a Will in that an heir is the person who succeeds to the estate of the testator (or to a portion of such estate) after all debts and legacies have been distributed. Although legacies are paid before anything is due to the heir, the debts of the estate must be paid before anything accrues to the legatees.

Types of legacies:

- Money legacy - this is where the testator leaves a specified amount of money to a particular person or organisation.

- Specific legacy - this is where the testator leaves a specified item to a particular person or organisation.

Minor

Someone who is under the age of eighteen and who has not attained the status of a major, for example, through marriage or a court order.

Pari passu

This is a Latin term that means a gift must be shared equally between all the members of a named group of individuals and/or organisation(s).

Per stirpes

In substitution "per stirpes" means that the children of a beneficiary will inherit equally between them the share their parent would've inherited had the parent not predeceased the testator.

Residuary estate

The remainder of a testator's estate after all debts have been paid and legacies have been distributed is known as the residuary estate. In a normal solvent estate, this is usually the main portion of the whole estate. It is important to realise that the more legacies you make the smaller your residuary estate will be.

Revoke

This means to cancel a Will. This is often done by creating a new will in its place with a revocation clause.

Entering into a marriage does not revoke the Will of a testator and the remarriage of the surviving spouse does not automatically revoke the joint Will of the surviving and deceased spouse.

Substitute executor

This is an executor you appoint in your Will to act in the place and stead of your original executor should they become unable or unwilling to act.

Survivorship clause

A survivorship clause eliminates the need for determining whether your partner died before or after you in a situation where you both die as result of the same catastrophe making it difficult to determine who died first. There is no presumption as to who died first in these circumstances. The survivorship clause determines the number of days that a spouse must survive the deceased testator to be eligible to inherit in terms of the Will.

Testator

The person making a Will.

Testamentary Trust

This is usually created in a will so that the inheritance or legacy of any beneficiary who has not yet reached a specified age of 18 or above at the date of the testator's death, can be held in trust and administered by trustees for the benefit of such beneficiaries until they do reach the required age. The inheritance or legacy will however vest in the beneficiary at the date of the testator's death, unless stated differently in the trust. So even if they should die before reaching the required age and receiving the benefit, it will still fall into their deceased estate.

Trust corporation

A company or organisation that specialises in administering estates and trusts.

Trustee

A person responsible for administering a trust.

Will

A legal document witnessed by two witnesses in which you say what is to happen to your possessions upon your death.

Witnesses

A witness is a person who must see you sign and then add their own signature to the document to confirm that it was you signing. Any person of 14 years or older who can sign his or her name and can give evidence in a court of law, is competent to sign as a witness. You can't use a witness who is blind or partially sighted or who lacks mental capacity to understand what they are doing.

See previous article: When to update your Will

Disclaimer: This article has been prepared for information purposes only and does not constitute legal advice, or a legal opinion. The practical application of the provisions of this article will vary depending on the facts of each case. The publication, author of the article and companies or individuals providing commentary cannot be held liable in any way.

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