Bona vacantia is the Crown’s statutory right to the property of an intestate. If the legislated order for relatives has been exhausted then the State is entitled to the estate of the intestate. In modern society the reduction in the size of the average family and the higher incidence of single child families the possibility of an intestate estate passing to the state or territory is now more likely than it once was.
Currently all bona vacantia estates go to consolidated revenue, with some arguing that this benefits the general community and not some remote relative who had little or no contact with the deceased. While in some jurisdictions there are provisions recognising Aboriginal customary law, the argument that the estates be made available for charitable purposes has not been acted upon.
Legislatures have examined the various legislative schemes that directed bona vacantia estates and some have broadened who may claim under an intestate estate to cousins and made provision to allow other claimants the ability to petition the court to overturn bona vacantia
In most Australian jurisdictions there is a provision that where, where no statutory relatives are entitled, the Crown may, out of a bona vacantia estate, provide for dependents, whether kindred or not, of the intestate and any other persons for whom the intestate might reasonably have been expected to make provision.
In NSW for example the State is entitled to the whole of the intestate estate where the intestate dies leaving no person entitled to the estate. However a written application can be made to the Crown Solicitor for the waiver of the State’s rights to an intestate estate. If the application is granted the State may waive the it’s rights in whole or part to an Intestate estate in favour of:
- dependents of the intestate, or
- any persons who have, in the Minister’s opinion, a just or moral claim on the intestate, or
- any person or organisation for whom the intestate might reasonably be expected to have made provision, or
- the trustees for that person or organisation.
This may include charities or community organisations that had a sufficiently close association with the deceased to make an application for provision out of that deceased intestate’s estate.