A person under legal incapacity means a person who is incapable of managing his or her affairs: r 7.13 of the Rules. The term “disabled person” is used interchangeably and means a minor or incompetent person: r 1.8 Supreme Court Rules 1970 (NSW).

Examples of persons under legal incapacity or disable persons include persons who are suffering a mental disability and depending on the circumstances, persons who are under the age of sixteen or eighteen years.

It is important to identify when an executor, administrator or beneficiary is under legal incapacity.

A handicapped person is defined in Order 15 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) as a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding. A person under a disability means a minor or a handicapped person.

Examples of persons under a legal disability include persons who are suffering a mental disability, persons under the care of the Public Trustee or an administrator appointed by VCAT and persons who are under the age of eighteen years.

It is important to identify when an executor, administrator or beneficiary is under legal incapacity.

A person under a legal incapacity is defined in Sch 2 Supreme Court of Queensland Act 1991 (Qld) as:

• a person with impaired capacity; or

• a young person (being an individual under 18 years).

A person with impaired capacity means a person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings.

Examples of persons under legal incapacity or disabled persons include persons who are suffering a mental disability and depending on the circumstances, persons who are under the age of sixteen or eighteen years.

It is important to identify when an executor, administrator or beneficiary is under legal incapacity.

A person under a legal incapacity is defined in Order 70 as:

• a person who is an infant (that is anyone under 18)

• a represented person (that is a person over whom an administration order has been made under s 64 the Guardianship and Administration Act 1990 (WA); or

• a person who by reason of mental illness, defect or infirmity is declared by the Court incapable of managing his affairs.

It is important to identify when an executor, administrator or beneficiary is under legal incapacity as steps will need to be taken to ensure the appropriate person or entity (including the Public Trustee of WA) is inserted to assume control of the executor or beneficiaries role or entitlement.

A person under a disability is defined in both the Supreme Court of Civil Rules 2006 and the District Court Civil Rules 2006 SA as:

• a child (being an individual under 18 years); or

• a person whose affairs are administered (wholly or in part) under a law for the protection of persons suffering from mental or physical disabilities; or

• a person who is not physically or mentally able to —

Examples of persons under a legal disability include persons who are suffering a mental disability, persons under the care of the Public Trustee and persons who are under the age of eighteen years.

It is important to identify when an executor, administrator or beneficiary is under legal incapacity.

If the executor does not have physical or mental capacity then another person, such as the executor’s financial manager, attorney under an enduring power of attorney or another interested person, will need to make an application for a grant of letters of administration durante dementia.

See Durante dementia.

If the only executor is a minor, an application for a grant of letters of administration with the will annexed needs to be made whereby the court can make a grant limited to the minor’s guardian or another person as the court thinks fit. This is a special grant termed administration durante minore aetate.

See Durante minore aetate.

If there is no will and the person entitled to the grant does not have capacity to make an application for letters of administration due to a mental illness then a special grant, termed administration durante dementia will need to be made on behalf of the applicant.

See Durante dementia.

If the only person entitled to the grant is a minor the court can make a grant to the minor’s guardian during minority. This is termed administration durante minore aetate.

See Durante minore aetate.

Note to all practitioners: Content under this heading applies in NSW only.

There may be situations where letters of administration need to be obtained where one or more of the persons entitled to the grant are under legal incapacity. For instance, a child of an earlier relationship and a new de facto partner are both equally entitled to apply for a grant. If the child is a minor, the new de facto partner needs the consent of the child’s legal guardian before making the application. Conversely, if the new de facto partner has dementia, then the child needs the consent of the new de facto partner’s attorney, if they have one, before applying to the court.

See Consent.

If a beneficiary is a minor or has not attained a vested interest in their entitlement in an estate, then their share is to be held on trust by the relevant trustee.

When a minor beneficiary becomes a sui juris beneficiary, meaning a person who has attained majority, who is of full age and full legal capacity, yet has not yet attained a vested interest in their entitlement then they can compel the trustee to transfer their entitlement to them pursuant to the rule in Saunders v Vautier.

If a beneficiary is under legal incapacity due to a mental illness then their share in an estate will be managed by either the trustee appointed under the will or if no trustee has been appointed, by the beneficiary’s attorney. If the beneficiary does not have an attorney, an application to the Guardianship Tribunal for financial management will need to be made by an appropriate person.

See Minor Beneficiary.

If a beneficiary is a minor or has not attained a vested interest in their entitlement in an estate, then their share is to be held on trust by the relevant trustee.

When a minor beneficiary becomes a sui juris beneficiary, meaning a person who has attained majority, who is of full age and full legal capacity, yet has not yet attained a vested interest in their entitlement then they may be able to compel the trustee to transfer their entitlement to them pursuant to the rule in Saunders v Vautier however that will very much depend upon the precise wording used in the trust. If the trust creates an age condition which the beneficiary must attain in order to have a vested interest then the beneficiary will not be able to rely upon the rule in Saunders v Vautier.

If a beneficiary is under legal incapacity due to a mental illness then their share in an estate will be managed by either the trustee appointed under the will and that will depend upon the terms of the trust or if the interest is vested then by the beneficiary's attorney or administrator if the beneficiary is the subject of an order by VCAT. If the beneficiary does not have an attorney or administrator, then an application to VCAT will need to be made by an appropriate person.

If a beneficiary is a minor or has not attained a vested interest in their entitlement in an estate, then their share is to be held on trust by the relevant trustee.

When a minor beneficiary becomes a sui juris beneficiary, meaning a person who has attained majority, who is of full age and full legal capacity, yet has not yet attained a vested interest in their entitlement then they can compel the trustee to transfer their entitlement to them pursuant to the rule in Saunders v Vautier.

If a beneficiary is under legal incapacity due to a mental illness then their share in an estate will be managed by either the trustee appointed under the will or if no trustee has been appointed, by the beneficiary's attorney. If the beneficiary does not have an attorney, an application to the Queensland Civil and Administration Tribunal for the appointment of an administrator will need to be made by an appropriate person.

See Minor Beneficiary.

If a beneficiary is a minor or has not attained a vested interest in their entitlement in an estate, then their share is to be held on trust by the relevant trustee.

When a minor beneficiary becomes a sui juris beneficiary, meaning a person who has attained majority, who is of full age and full legal capacity, yet has not yet attained a vested interest in their entitlement then they can compel the trustee to transfer their entitlement to them pursuant to the rule in Saunders v Vautier.

If a beneficiary is under legal incapacity due to a mental illness then their share in an estate will be managed by either the trustee appointed under the will or if no trustee has been appointed, by the beneficiary's attorney or administrator if the beneficiary is the subject of an order by the Guardianship and Administration Board under the Guardianship and Administration Act 1990 (WA) (and in which case the beneficiary is a “represented person” as defined in Order 70 of the Rules of the Supreme Court 1971 (WA). If the beneficiary does not have an attorney or administrator, an application to Guardianship and Administration Board will need to be made by an appropriate person.

If a beneficiary is a minor or has not attained a vested interest in their entitlement in an estate, then their share should be held on trust by the relevant trustee until they attain full legal age, as a minor cannot give a valid receipt to the executor for a gift.

When a minor beneficiary becomes a sui juris beneficiary (meaning a person who has attained majority, who is of full age and full legal capacity), yet has not yet attained a vested interest in their entitlement then in some circumstances they can compel the trustee to transfer their entitlement to them pursuant to the rule in Saunders v Vautier. The Rule does not apply unless all potential beneficiaries are sui juris and in cases where the gift is made conditional upon a person attaining a certain age and where one or more others benefits if they don’t, eg where a “gift over” is made to children of the donee in the event the donee does not attain the age specified. This is because, in these cases, the beneficiary does not have an absolute entitlement to the gift and, in cases where a minor may later benefit if the age is not reached, the minors cannot consent to ending the trust.

Where Letters of Administration have been granted, s 65 of the Administration and Probate Act (1919) SA requires the Administrator to pay over to the Public Trustee any amount to which a beneficiary who is not sui juris or who is not resident in South Australia and has no duly authorised agent or attorney appointed in South Australia.

If a beneficiary is a minor or has not attained a vested interest in their entitlement in an estate, then their share is to be held on trust by the relevant trustee.

When a minor beneficiary becomes a sui juris beneficiary, meaning a person who has attained majority, who is of full age and full legal capacity, yet has not yet attained a vested interest in their entitlement then they can compel the trustee to transfer their entitlement to them pursuant to the rule in Saunders v Vautier.