A few more funny legal terms

The law has always been part of society's means of controlling its own members and codifying which behaviours are expected and which are not. The following are a few examples of laws that were made to clarify the rules about social behaviour:

1. Jactitation - the crime of false boasting or bragging to someone else's detriment. This is no longer against the law, as anyone who watches reality television can attest.

2. Barratry - the crime of frequently causing quarrels and/or law suits. Again, this is no longer a crime. We do still have a general rule about "frivolous and vexatious" lawsuits which often results in the loser of a malicious or ridiculous lawsuit paying costs to the other party.

3. Cucking stool - a woman who was considered a nag or scold was publicly placed on a stool which was dunked into the local river. Of course this is no longer acceptable.

4. Legenita - I suppose that if there is a specific law to control women's behaviour, there is bound to be one applying to male behaviour. Legenita was a fine that was levied against a man who had "criminal conversation" with a woman. "Criminal conversation" is a euphemism for extra-marital sex.

5. Corium forisfacere - another obsolete (fortunately) term that refers to punishing servants who misbehave by whipping them. The term is latin, and translates as "to forfeit one's skin".

Can a lawyer act for an executor and for the beneficiaries?

When there is a lawyer acting on an estate, he or she has usually been hired by the executor to handle the probate of the Will and sometimes the administration of the estate as well. In a case like this, the lawyer is acting for the executor. The lawyer's loyalty is to the executor, who in turn represents the estate.

A lawyer can act for the executor and the beneficiaries at the same time, but has to be careful about conflicts of interest. For example, a very common situation is one in which a man dies, leaving his wife as the executor of his estate, but he doesn't leave her the entire estate. The wife hires a lawyer to probate the Will. The lawyer knows that the wife can apply to the court to get more of the estate. The lawyer could not act for the wife with respect to the application for more of the estate, but he or she could act for the wife on the probate. Any executor who is making a personal claim against an estate like this is wearing two hats - one executor hat and one personal (beneficiary) hat - and will likely have two lawyers.

The estate lawyer cannot represent anyone whose interest is, or could be, adverse to the well-being of the estate (for those of you who are into research, this is set out in the Alberta Lawyer's Code of Professional Conduct, Chapter 6, Rule 2, Commentary 2.4).

Most of the time, the beneficiaries don't want or need their own lawyers because things go along smoothly. They would probably hire a lawyer if they wanted to dispute what they were getting under the Will, if they needed an answer to a legal question (such as, was the joint property really joint property), or if they need to do something about an executor who is fraudulent, negligent or otherwise acting suspiciously. Other than that, beneficiaries usually have no need for their own legal representation.

But beneficiaries need to realize that the estate lawyer will do, on the instruction of the executor, what he or she thinks is best for the estate, even if that is not necessarily what any individual beneficiary wants. An individual beneficiary cannot instruct the estate lawyer to do what that one beneficiary wants. That would be chaos.

In most estates, there is a lawyer who represents the estate and is frequently the only lawyer involved in it. When beneficiaries receive the final accounting at the end of the estate and are being asked to sign off on it, they sometimes consult an estate lawyer for a couple of hours just to review/interpret the accounting and to ensure that all is in order.

Understanding Enduring Powers of Attorney

I'm frequently asked to clarify the various terms that describe Powers of Attorney. It's easy for lawyers and legal assistants who talk to clients to forget that the clients might not have a full understanding of the legal terms we toss about. And it's important that clients do understand them, as they use Powers of Attorney every day without a lawyer present.

First of all, the word "Enduring", "Continuing" or "Durable" (depending on where you live) identifies a Power of Attorney that was made by someone who was mentally healthy on the day the document was signed, to be prepared in advance for the day when he or she might lose mental capacity. In law, this is an essential term that distinguishes the planning document from regular business Powers of Attorney that become void once a person loses mental capacity.

It is called "Enduring" or "Continuing" because it is not voided by mental incapacity, but endures or continues through that. Note that it does not endure through the death of the person who signed it.

Also note that a person must have mental capacity to understand the document and its effects in order to sign one. If a person has already lost capacity and needs someone to look after financial affairs, he or she may need the court to appoint someone as trustee.

Once it's established that a Power of Attorney is Enduring/Continuing, there are two kinds available. The difference between them relates to when and how the document is put into use.

An "immediate" Enduring Power of Attorney comes into effect as soon as it is signed. This kind is relatively rare, but is useful in certain circumstances. For example, a person who is beginning to experience confusion and memory loss, or who simply wants help with the banking, may sign one of these.

A "springing" Enduring Power of Attorney comes into effect at a later date, that date being whenever the person who signed it loses mental capacity. In that way, it's similar to a Will, which is signed now but not used until the testator dies. A springing Enduring Power of Attorney "springs" into effect when it is triggered by proof of mental incapacity. This is by far the most popular type of Enduring Power of Attorney.

Are there other legal terms you'd like to see clarified? Let me know.

More funny legal terms

People tell me from time to time that they think the legal system is slow to change. It's true that it does honour tradition and precedent, though it changes over time. Here are some words that describe some professions that used to be part of the legal system that either don't exist any longer, or have developed into something else:

chafewax - this person's job was to prepare and apply the wax that was needed to seal the documents that were signed by a judge. The judge would then press the court's official stamp into the warm wax to leave an impression. These days no actual wax is used, though many legal documents have either a foil or paper "star" on them with a seal embossed on top, or simply the embossing alone (such as a notary public's seal).

catchpole - this person's job was to round up people who had failed to pay their bills and were being sent to debtor's prison. Because people were often, not surprisingly, reluctant to go along quietly, the catchpole used an 8-foot pole with a noose on the end to catch the person and lead him through the streets to the prison. The word catchpole referred both to the pole and the person using it. Fortunately for modern debtors, collection agencies don't use catchpoles.

crier - this person's job was to publicly announce the decisions of the local courts by walking through the streets ringing a handbell and shouting "Oyez" to get people's attention. Traditionally their uniform was a gaudy outfit consisting of robes, breeches and a three-corner hat. I haven't seen anyone dressed like that lately except for a couple of hotel doormen.

ale-conner - although this job wasn't part of the legal system at all, I still think it counts since lawyers and judges like beer as much as anyone else. An ale-conner's job was to ensure the quality of bread, beer and ale on behalf of his town or parish. The story goes that an ale-conner would pour some ale or beer on a chair then sit on it in his leather pants. If he stuck to it, it meant that the drink had too much sugar in it. These days we probably wouldn't pay a person to pour his drink on the chair and sit on it. In fact we'd probably just send him home in a cab to sober up.

On the lighter side, some funny legal terms

When people think about the law, having a chuckle isn’t the first thing that comes to mind. But many of us who work in this serious profession like to take every opportunity to smile at certain aspects of the legal system. After all, it isn’t good to take yourself too seriously.

Some words that have a certain meaning to people in general can have a completely different meaning in the context of the law. Here are some examples:

1. Ignoramus – this is a Latin word that literally translates as “we ignore it”. In law, it was used by grand juries in the USA when they had heard a case against an accused person and had decided not to prosecute the person. The official finding of the jury was “ignoramus’, meaning that they were ignoring the charges against the accused person. Today the word has evolved into quite a different meaning in popular usage!

2. Pickle – in real estate law, this meant a small parcel of land enclosed by a hedge.

Some legal words are astonishing in what they tell us about how much our legal system has (thankfully) changed:

3. Cold water ordeal – in medieval England, the courts had creative, if barbaric, methods of determining whether a person was guilty of a crime. These methods were referred to as “trial by ordeal” and were based on the concept that the accused person should be subjected to something which he would not normally be expected to survive and if he was innocent, he would be saved by God. One of these trials by ordeal was the cold water ordeal in which the accused person had a rope tied around his neck and was thrown into a river. If he died, he was guilty; if he somehow survived, he was innocent. Needless to say, most were found guilty.

4. Hue and cry – in old England, when a person committed a crime, a witness or victim would raise the alarm by shouting something like “stop, thief!”. Anyone close enough to hear this “hue and cry” was expected to join in the chase to catch the offender. Eventually the verbal shouting became a written notice that was issued by the local authorities to alert the community about the offender. This notice survived in the form of a “wanted” poster seen in western movies. Today we have online and newspaper notices of fugitives as well as media distribution of security camera footage. The “hue and cry” has evolved with changing technology but the essential purpose and result are the same.

And some legal words just sound funny, which as an avid reader and writer, I enjoy:

5. Butts and bounds - the corners of the boundaries of a parcel of land where the property lines intersect.


6. Outsucken multure – in old Scotland, this was a fee paid by a farmer who went to have corn ground at a mill that is not the mill he was bound to by tenure.