Writing a will can involve many complicated legal terms. Here are the most commonly used terms in your will and what they mean.
Common estate planning terms
When the total value of bequests is greater than the available assets, the value of the bequests is reduced in order to satisfy other debts or obligations.
Ademption occurs when a specific gift or bequest mentioned in a person's will is no longer available because it has been sold, disposed of, or destroyed by the testator.
Items owned by the testator. The assets can include money, investments, real estate, vehicles, and other valuable possessions.
A gift or specific item that is left to a beneficiary in the will. This can be a tangible item such as a piece of jewelry, a sum of money, or even real estate.
Bequests typically represent a small portion of the assets distributed in a will. The majority of the estate is distributed through the residue.
Complete days, not including the day on which the period begins.
A legal document that is used to make amendments or additions to an existing will. A codicil can be used to update beneficiaries, change bequests, or make other modifications to the original will without revoking the entire document.
Online will platforms like LegalDeeds are affordable enough that generating a new will is cheaper and easier than contacting a lawyer for a codicil.
A formal objection to the validity of a will or its terms.
The "executor" is the person or entity named in the will who is responsible for administering the estate and carrying out the wishes of the testator. The responsibilities may include managing assets, paying debts, and distributing assets to beneficiaries according to the terms of the will.
A person who is legally appointed to take care of a child. A guardian is usually a relative or a close friend.
The assets gifted to someone when the testator passes away.
If a person passes away without a valid will, they are said to have died "intestate." In such cases, the distribution of assets will be determined according to the intestate succession laws of the province or territory in which the person resided, which may not align with their wishes.
The term "among my issue" commonly used in wills refers to the descendants or offspring of the testator, including children, grandchildren, and other descendants. For example, a will may state "I leave my estate to be divided equally among my issue," meaning that the assets of the estate will be distributed equally among the testator's children, grandchildren, and other descendants.
Last Will and Testament
A “Last Will and Testament” is the term for what people usually call a “will”. A will is a legal document that explains what you want to happen after your death. The will can include details about how your assets should be distributed, who will take care of your children, who will handle distributing your assets, and more.
A "living will" or "health care directive" is a legal document that outlines your wishes and instructions regarding medical treatment and end-of-life care if you become incapacitated or unable to communicate your preferences. A living will is sometimes called a "power of attorney for personal care" if the document appoints someone to make decisions on your behalf.
Read our blog post “The role of a substitute decision maker” if you want to learn more about making health care decisions for a loved one.
Two nearly identical wills. Frequently used to describe couples who write wills at the same time and leave everything to each other.
You can write mirrored wills online by visiting LegalDeeds and placing two separate orders.
Per Stirpes and Per Capita
Per stirpes and per capita refer to what happens to a person's share of the estate if they predecease the testator. Read our Per Stirpes vs Per Capita blog post for a visualization of how the estate would be distributed.
A situation where a person passes away before the testator. If a beneficiary predeceases the testator, their share of the estate may be distributed differently as per the terms of the will or the laws of intestate succession.
The residue of the estate refers to the remaining assets in the estate after distributing bequests and paying taxes, debts, and any other expenses.
The residue is typically larger than a request. For example, if a testator leaves a bequest of $10,000 to a specific beneficiary, the estate pays $5,000 in funeral costs, and the total value of the estate is $100,000, then the residue would be $85,000.
Distributing the majority of an estate through the residue makes sure the amounts allocated to beneficiaries are equal.
The person writing the will. In British Columbia, the testator is called a “will-maker”.
A testamentary trust is a type of trust that is created within a will and comes into effect after the death of the testator. The testamentary trust is managed by a trustee, who is responsible for administering the trust according to the terms and conditions set forth in the will.
A testamentary trust is commonly used to manage assets for minor children until they reach the age of majority.
A similar term, “inter vivos trust”, refers to a trust created when a person was still alive. Inter vivos trusts are not created by a will but lawyers can write clauses that impact the inter vivos trust when the testator passes away.
A witness, in the context of estate planning, is a person who observes the testator signing the will, and then signs the will themselves as evidence that they witnessed the testator's signature. The witness attests to the fact that they saw the testator sign the will and that the testator appeared to be of sound mind and under no duress or undue influence at the time of signing.
In Canada, a will must have two witnesses to be legally valid. The witnesses must be neutral and not have any interest in the contents of the will, meaning they should not be beneficiaries, the spouse of a beneficiary, or anyone else named in the will. Similar rules apply to signing a Power of Attorney or a Health Care Directive.
Witnesses play an important role in Canadian law. Witnesses provide impartial evidence that the testator voluntarily signed the will if anyone ever tries to dispute the validity of the will.
Reviewing a will before signing
You should always read and understand your will before signing. In particular, you should make sure that all names are spelled correctly or your wishes may be contested in court after you pass away.
We hope our glossary helps you understand your will. You should contact an estate lawyer in your jurisdiction if you have any questions about the implications of your will. Online will platforms like LegalDeeds can help you write a will but we cannot provide legal advice.