Updates and background for this project (Digest)
BONA VACANTIA
Qld... s 35(1); Sch 2 Pt 2 It 4; Property Law Act 1974 s 20(3)(a)
ACT... s 49(1); s 49CA; Sch 6 Pt 6.2 It 4
NSW... s 61B(7)
NT... s 66(1); Sch 6 Pt 4 It 4; Law of Property Act 2000 s 20
SA... s 72G(e)
Tas... s 45
Vic... s 55
WA... s 14(1) Table It 11; Escheat (Procedure) Act 1940 s 2, s 9
NZ... s 76, s 77 It 8
Eng... s 45(1)(d), s 46(1)(vi)
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7.1 Bona vacantia is the Crown’s statutory right to the property of an intestate estate, to which no relatives are entitled. In most jurisdictions when the intestate is not survived by a spouse or partner, issue, parents or remoter eligible relatives, the Crown (or “Territory”) is entitled to the intestate’s estate by bona vacantia.1
7.2 The possibility of an intestate’s estate passing to the Crown may not be so unlikely as it once was, given the reduction in the size of the average family in Australia and the higher incidence of single child families. The following hypothetical example illustrates the point:
Alan died intestate leaving no spouse and no issue. Alan was an only child of parents each of whom was an only child. His parents and all of his grandparents had predeceased him.2
A further example may be found in a 1991 case where one third of the large estate of an elderly woman (who left no relatives entitled on intestacy) went on partial intestacy to the Crown, contrary to her intention, because her will was badly drawn.3
7.3 In the Australian Capital Territory, conditions are imposed upon the public trustee where the Territory is entitled to an intestate estate. The estate must be held in trust until six years have passed since the date of death of the intestate. At that point the estate must be sold and the proceeds paid to the Territory (less all costs and charges lawfully due to the public trustee or any other person).4
7.4 An alternative proposal could be to enact a provision whereby the intestate’s estate goes to a charity or charities rather than to the Crown.5 In 1985 the Law Reform Commission of Tasmania noted:
The Commission believes that most people would prefer their estate to go to charity than to the Crown, given that no close family exist at the time of their death. Although many people might object to the property going to the State rather than to relatives of the deceased, they are less likely to object to it going to charity.6
However, the Tasmanian proposal would involve the establishment of a “Charities Board” to distribute the funds received. Uniform national legislation would then require the creation of a charities board in each jurisdiction. The Law Commission of England and Wales was opposed to such a proposal as the chosen charity would, then, also have the job of administering the intestate estate and would be required to account to any beneficiaries that are subsequently discovered.7
7.5 A provision to similar effect has been enacted in Queensland with respect to Indigenous people who die intestate. In cases where the chief executive of the Aboriginal and Islander Affairs Corporation is unable to determine that any person is entitled to succeed to the estate or a part of the estate, that property shall “vest in the chief executive who shall apply the moneys or the proceeds of the sale of any property (less the expenses (if any) of such sale) for the benefit of [Aborigines/Islanders] generally” under the schemes whereby the chief executive may grant aid to Indigenous persons who apply for it on such terms as the chief executive may think fit.8
PROVISION FOR DEPENDANTS
Qld...
ACT...
NSW... s 61B(8)
NT...
SA...
Tas... s 45(2)
Vic... Financial Management Act 1994 s 58(3)
WA...
NZ... s 77 It 8
Eng... s 46(1)(vi)
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7.6 A number of jurisdictions allow the Crown to provide for dependants for whom the intestate might have been reasonably expected to have made provision,9 or who might be said to have a “moral claim” against the estate.10 In New South Wales the Crown Solicitor has published guidelines on the procedure for applications.11
7.7 Such a provision was designed to include foster children and “will cover also the situation of an old friend, say, who looked after the intestate in the last days of his life”.12 Such a provision could also be used, albeit in limited circumstances, to provide for step children of the intestate who are otherwise not entitled to distribution on intestacy.13
7.8 The provision can be seen to be statutory recognition of the common law right “of certain dependants of the intestate who, although not entitled at law, may nevertheless petition the Crown for a waiver of its rights of bona vacantia in any estate in respect of which there are no legal next of kin”.14 It has been noted, at least in New South Wales, that the provision allowing dependants to make application was of particular importance to de facto couples, both heterosexual and same-sex, before the reforms of 1984 and 1999 respectively, since they could not apply under family provision legislation.15
7.9 Certoma has criticised the discretionary nature of this provision and argues that, at least in New South Wales, “…it implies that the intestate would not reasonably have been expected to make provision for a relative as close as a first cousin. It would, one would suspect, be difficult to imagine that any testator would prefer the Crown as bona vacantia rather than to benefit his closest relatives.”16
7.10 It can be argued that such a provision is no longer necessary given the broader scope of family provision legislation to cover dependants. In any case, the recommendations of the National Committee in relation to family provision would appear to cover the situation, whereby a person, whether or not they are a member of the family of a deceased person, may apply for a family provision order if they are “a person to whom [the] deceased person owed a responsibility to provide maintenance, education or advancement in life.”17 In making a family provision order in relation to such an application, the court may have regard to whether the applicant “was being maintained, either wholly or partly, by the deceased person before the deceased person’s death”.18
7.11 It is important to distinguish between the nature of an application under family provision and the nature of an application for provision out of bona vacantia. In the case of a claim for family provision a person, who is not entitled to a share of the deceased’s estate, may only make a claim if they were being maintained by the deceased or over whom the deceased had responsibility. In the case of an application for provision out of bona vacantia application may be made by a person who has a purely moral claim to a share of the estate, for example, foster children.
ISSUE 7.2
Should uniform legislation allow persons to petition the Crown to make provision for them out of bona vacantia?
ISSUE 7.3
If so, what criteria should be used to identify the people who are entitled to apply?
FOOTNOTES
1. Succession Act 1981 (Qld) Sch 2 Pt 2 It 4; Administration and Probate Act 1919 (SA) s 72G(e); Administration and Probate Act 1958 (Vic) s 55; Administration and Probate Act 1929 (ACT) Sch 6 Pt 6.2 It 4; Administration and Probate Act 1969 (NT) s 66(1) and Sch 6 Pt 4 It 4; Wills, Probate and Administration Act 1898 (NSW) s 61B(7); Administration and Probate Act 1935 (Tas) s 45; Administration Act 1969 (NZ) s 77 It 8; and Administration of Estates Act 1925 (Eng) s 46(1)(vi). Western Australia does not employ bona vacantia. It is the only Australian jurisdiction which maintains escheat to the Crown. Escheat is the feudal rule whereby real property would revert to the Crown, or lord of the fee, should the owner of such property die intestate and without heirs. Land may also have reverted if the holder grossly breached his or her feudal bond. In Western Australia escheated property includes real and personal property: Administration Act 1903 (WA) s 14(1) Table It 11; Escheat (Procedure) Act 1940 (WA) s 2, s 9. In cases of intestacy, at least, escheat has been expressly abolished in Property Law Act 1974 (Qld) s 20(3)(a); Wills, Probate and Administration Act 1898 (NSW) s 61B(7); Law of Property Act 2000 (NT) s 20; Administration and Probate Act 1935 (Tas) s 45; Administration and Probate Act 1958 (Vic) s 55; Administration Act 1969 (NZ) s 76; and Administration of Estates Act 1925 (Eng) s 45(1)(d).
2. Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at 65.
3. Mortensen v State of New South Wales (NSW Court of Appeal, No 40544/1990, 12 December 1991, unreported).
4. Administration and Probate Act 1929 (ACT) s 49CA.
5. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at 13.
6. Law Reform Commission of Tasmania, Report on Succession Rights on Intestacy (Report 43, 1985) at 15.
7. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at 14.
8. Community Services (Aborigines) Act 1984 (Qld) s 169, s 173(4); Community Services (Torres Strait) Act 1984 (Qld) s 179, s 183(4). See para 9.15-9.16 below.
9. Wills, Probate and Administration Act 1898 (NSW) s 61B(8); Administration and Probate Act 1935 (Tas) s 45(2); Administration and Probate Act 1958 (Vic) s 58(3); Administration Act 1969 (NZ) s 77 It 8; and Administration of Estates Act 1925 (Eng) s 46(1)(vi).
10. Escheat (Procedure) Act 1940 (WA) s 9.
11. K Mason and L G Handler, Wills Probate and Administration Service (Butterworths, Service 69) at para 5206.
12. NSW, Parliamentary Debates (Hansard), Legislative Assembly, 16 November 1954, Administration of Estates Bill, Second Reading at 1715.
13. See para 5.6-5.12.
14. NSW, Parliamentary Debates (Hansard), Legislative Assembly, 25 October 1977, Wills, Probate and Administration (Amendment) Bill, Second Reading at 8993.
15. K Mason and L G Handler, Wills Probate and Administration Service (Butterworths, Service 70) at para 1305.6.
16. G L Certoma, “Intestacy in New South Wales: The 1977 Statutory Amendments” (1979) 53 Australian Law Journal 77 at 83.
17. Family Provision Bill 2004 cl 7 in National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) Appendix 2.
18. Family Provision Bill 2004 cl 11(2)(j) in National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) Appendix 2.
