Abatement is a principle pursuant to which the gifts set out in the person’s Will are reduced rateably, and in order depending on the type of the gift, because the assets of the estate are insufficient to pay all of the deceased person’s debts and fully satisfy all gifts set out in the Will.

Ademption simply means failure of the gift. Ademption occurs when a specific gift in a person’s Will cannot be satisfied due to the lack of existence of the property that was the subject of the gift.

For example, a person’s Will provides that Person A is to receive a specific watch but the person sells or otherwise disposes of that watch prior to death. In that case, the gift of that specific watch in the Will fails or adeems, and Person A will not receive the watch.

A bequest is a gift of personal property (for example, a watch). Often, however, the terms legacy, bequest, and devise are used interchangeably in Wills.

Bona fide means genuine, or sincere or real. In law context, it is generally used as meant to be in good faith, without malice intention or without intention to deceit.

A devise is a gift of real property.

Hotchpot means taking into account prior gifts or advances to ensure an equal division of an estate or to ensure that a particular person receives the desired aggregate amount from an estate taking into account prior gifts.

In loco parentis means or refers to a person who is acting or has acted as a parent to a child but is not a biological parent to that particular child or the child is not legally adopted by the particular person that is acting or has acted in place of a parent. Often, also referred to as a step-parent.

If a person dies without leaving a valid Will, the person is said to have died “intestate”.

In that case, the distribution of the assets of that deceased person would be governed by provincial or territorial law, and will not be distributed how that deceased person may have wanted. In Manitoba, distribution would be governed by The Intestate Succession Act (Manitoba).

In specie means in-kind or in original form – i.e. a gift that is transferred in specie is transferred in-kind or in its original form.

Lawyers often used the word “issue” in drafting Wills. Generally, that word means lineal descendants of a person (i.e. children, grandchildren, great-grandchildren, etc.). It may, however, include persons other than biological lineal descendants.

It is always preferable that the Will include a definition of the word.

TIP: If you have any special family circumstances (e.g. step-child, adopted child, foster child involved), your lawyer needs to know about it to ensure that the Will accurately reflects the intentions regarding the classes of beneficiaries being included in the Will.

A legacy (when used as a term in a Will) is a gift of money. Often, however, the terms legacy, bequest, and devise are used interchangeably in Wills. In Quebec, all of these terms are referred to by lawyers as legacies.

Generally, the phrase per capita means distribution by number of lineal descendants. Read on for more detailed description…

Lawyers often use the phrases “per stirpes” and “per capita” in the Wills, as each of these phrases refers to a specific manner in which an estate (or a share of an estate) is to be distributed without having to write out long paragraph describing the scheme of distribution.

Generally, the phrase per stirpes means distribution by branch of the family. For example, assume a person had 3 children and each of such children also had 3 children (i.e. grandchildren of the deceased person) but one of the children dies before the parent. If the Will indicated that the estate is to be distributed “to issue equal shares per stirpes“, this means that each of the 3 children of the deceased would be entitled to receive 1/3. Because one of the children died before the parents, 1/3 of the estate of the child that died before the parent would be distributed among the children of the predeceased child (i.e. grandchildren on that particular branch of the family).

Generally, the phrase per capita means distribution by number of lineal descendants. However, the number of lineal descendants to be taken into account for distribution may also depend on wording in the Will. If we take the example of the family structure from above, distribution per capita may result in distribution into 5 shares and each of the living children receiving less inheritance – i.e. because we would count by number of beneficiaries living to the first degree, we have 3 grandchildren, being children of the child that died before the parent, and 2 living children.

In most cases, clients prefer per stirpes distribution but make sure that you review the Will carefully to ensure that you understand that word and phrases used, so that it accurately carries out your intentions.

Generally, the phrase per stirpes means distribution by branch of the family. Read on for more detailed description…

Lawyers often use the phrases “per stirpes” and “per capita” in the Wills, as each of these phrases refers to a specific manner in which an estate (or a share of an estate) is to be distributed without having to write out long paragraph describing the scheme of distribution.

Generally, the phrase per stirpes means distribution by branch of the family. For example, assume a person had 3 children and each of such children also had 3 children (i.e. grandchildren of the deceased person) but one of the children dies before the parent. If the Will indicated that the estate is to be distributed “to issue equal shares per stirpes“, this means that each of the 3 children of the deceased would be entitled to receive 1/3. Because one of the children died before the parents, 1/3 of the estate of the child that died before the parent would be distributed among the children of the predeceased child (i.e. grandchildren on that particular branch of the family).

Generally, the phrase per capita means distribution by number of lineal descendants. However, the number of lineal descendants to be taken into account for distribution may also depend on wording in the Will. If we take the example of the family structure from above, distribution per capita may result in distribution into 5 shares and each of the living children receiving less inheritance – i.e. because we would count by number of beneficiaries living to the first degree, we have 3 grandchildren, being children of the child that died before the parent, and 2 living children.

In most cases, clients prefer per stirpes distribution but make sure that you review the Will carefully to ensure that you understand that word and phrases used, so that it accurately carries out your intentions.

After payment of debts and liabilities, the distribution of personal effects and household items, the distribution of specific property and gifts, the remainder of your estate is called the “residue”.

Subscribe to get free information and updates

You can unsubscribe from receiving the e-newsletters and other marketing content at any time by clicking “Unsubscribe” in the footer of any e-mail received or by contacting us directly at [email protected] Your personal information will not be used for any purpose other than for which your consent has been given and is subject to our Privacy Policy. This express consent is sought in respect of our marketing content and operates separately from the consent for us to communicate by electronic means with our clients in our professional duty as lawyers.

LET'S KEEP IN TOUCH

You can always unsubscribe.