Bona Vacantia & Incorporated Associations

Paula Anne Bates had a close association the Genesian Theatre Company Inc (‘the Theatre’) for over 30 years. In late 2007 and early 2008, Paula instructed her solicitor to draft her final Will (“unexecuted Will”) including a provision that her executors hold the net balance of the Estate on trust for the sole benefit of the Theatre, to be utilised for the ongoing benefit of the Theatre and not be used for general running expenses.

Paula, a resident of an aged care facility, had discussed her wishes with her friends and was happy with the unexecuted Will asking her solicitor to arrange for a member of the aged-care home’s staff to put it in their safe. On 14 February 2008, Paula died. No executed Will has ever been found or identified.

In 2010, the named executors of the unexecuted Will, applied for a grant probate. The application was refused by the Registry. The applicants did not make an application for judicial proceedings and the proceeds of the Estate were entrusted to the NSW Trustee and Guardian (“the Trustee”). In October 2013, Letters of Administration were granted to the Trustee in accordance with Division 2A of the Wills, Probate and Administration Act 1898 (NSW) (“the Act”) as it was in effect at the time of Paula’s death.

In April 2016, the Trustee determined that there were no relatives of the Deceased who were entitled to receive the benefit of the Estate and notified the Office of the Crown Solicitor that the Estate would pass to the Crown as bona vacantia under s 61B(7) of the Act.

Following a number of attempts the Crown has refused an application to pay the balance of the Estate to the Theatre because it says that upon the proper construction of the Act, it is not permitted to pay monies held bona vacantia to a body corporate. The Crown advised the Theatre in August 2018, to make an application to the NSW Supreme Court to obtain a declaration that the Theatre is a “person” within s 61B(8) of the Act.

The Court held that s 61B(8) represents a “catch-all” provision permitting the Crown to pay out the property of an intestate to any person, including a not-for-profit or charitable organisation, that could establish that the intestate “… might reasonably have been expected to make provision” with no reason to construe these words as only referring to individuals. It follows that the reference to “person” in s 61B(8) of the Act should be taken to include a body corporate such as the Genesian Theatre.

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