Minister Waives States Right to Bona Vacantia

In yesterdays post I discussed the changes to the intestacy provisions regarding bona vacantia. Ian McDermott (also known as Ian Thompson) died without a Will leaving an estate, valued at about $166,000.

Ian was unmarried at the time of his death, had no children of his own and his parents and only brother has predeceased him. Under New South Wales intestacy laws the deceased’s estate passes to the State, subject to any Court orders that might be made by way of a grant of family provision relief

At some stage Ian was married but that marriage ended in divorce. His former wife made no claim against his estate, however her daughter who had lived with the deceased and her mother believing that the deceased was her natural father, made a claim. As her mother and the State of New South Wales elected not to appear in opposition to her claim the court could proceed to make a family provision order disregarding her mothers interest in the deceased’s estate.

The stepdaughter applied for and was granted letters of administration of the intestate estate, and submitted a claim for family provision showing that she had a familial claim on the estate of the deceased, and substantial need for assistance. As she was a single mother with three children, living in social housing, and dependent upon welfare for her income.

The Court agreed that the stepdaughter could take the entire estate to provide for her maintenance, education and advancement in life and that her legal costs for the Court proceedings be paid out of the estate of the deceased.

If Ian had left a Will he may have directed his estate in a different manner. As he did not make a Will it is only fair that  people like his stepdaughter have the ability to apply to the Crown Solicitor to ask the Minister to waive the State’s right to the estate in their favour; or alternatively to argue that they had a just or moral claim on the intestate estate when the alternative was that the proceeds of the estate would be paid into general revenue.

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