What Is Bona Vacantia? (Vic)

When someone dies without making a will, they are described as “intestate”. An intestate estate in Victoria is administrated according to the Administration and Probate Act 1958, which favours the rights of the next of kin to inherit. In very rare cases, an intestate person has no close family so the state government inherits the assets of the deceased estate because it is bona vacantia, or “unclaimed goods”. This article explains the factors that lead to a deceased estate in Victoria being determined to be bona vacantia, and how succession law is applied in those circumstances.

Intestacy

There are several reasons why a deceased estate might be declared intestate. The most common cause of intestacy is when the deceased failed to make any testamentary arrangements (ie. a will) before they passed away. Sometimes a person thinks they have made proper arrangements and do not realise that their will has been invalidated by subsequent events. For instance, the marriage of a testator invalidates any previously made will unless it was specifically drafted in contemplation of marriage. In the same vein, a divorce automatically revokes provision for a spouse and their appointment to any trustee or executor role. An estate can also be partially intestate if a will has not been updated recently and therefore does not account for all of the assets that the deceased owned at the time of death.

A deceased estate can also be intestate if the only will of the deceased is challenged and a court finds the will invalid. A will is challenged because it was not properly signed and executed or was created through fraud, forgery or undue duress, or the deceased lacked the necessary testamentary capacity. In that case, the will is put aside as if it did not exist, which results in the estate becoming intestate if there is not a valid, earlier will.

Intestate succession legislation in Victoria dictates that a deceased’s spouse or de facto or registered partner inherits in entirety if the estate has a value of up to around half a million dollars. If the deceased had children from a previous relationship and the estate is valued in excess of this statutory amount, then the children are also entitled to a portion of the estate. In this event, the spouse receives the statutory amount (including interest), any personal possessions of the deceased, and half of the remaining estate. The children of the deceased inherit an equal share of the remaining half of the residual estate.

When the deceased has no surviving wife or children, the order of succession dictates that the next to inherit from an intestate estate is the deceased’s parents. If the deceased’s parents have also passed away, then the list moves on to siblings, grandparents, uncles and aunts and first cousins. In the event that a deceased dies intestate in Victoria and they have no surviving direct family as outlined in succession legislation, then the estate is designated bona vacantia.

Bona Vacantia

The term bona vacantia comes from the Latin for ownerless or vacant goods. It is a legal term to denote a circumstance where property has no clear owner because the asset was mislaid, abandoned or forgotten. As such, the assets of a deceased estate can also be bona vacantia when someone dies without a valid will and no known heirs.

In Victoria, the residual assets of a bona vacantia estate revert to the state government after the payment of any outstanding liabilities. If no heirs are found, the assets of the estate may be used according to the wishes of the state government. Under the Financial Management Act 1994, the Minister for Finance can treat unclaimed property in any way they see fit, including assigning assets to any person who was a dependent of the deceased or anyone, who in the judgment of the Minister, the deceased might reasonably have made provision for in their will.

Claims Against A Bona Vacantia Estate

Claims can be made against a bona vacantia estate that has reverted to the state government. Someone who is not eligible to make a family provision claim or benefit under intestacy legislation can still make a claim against the bona vacantia estate. The claimant applies through the Crown Solicitor to the Attorney General and makes an argument that they have good cause why they should inherit from the deceased estate. A claimant must be someone with a reasonable claim on the estate, such as a dependent who received regular maintenance from the deceased, or a charitable organisation who received regular donations from the deceased and expected the deceased to leave a charitable bequest upon their death.

It is very unusual for circumstances to result in a bona vacantia deceased estate. Nevertheless, if a deceased failed to leave a valid will, and had no rightful heirs, then the state government is entitled to receive these assets. The reality of this legal provision reinforces the importance of everyone making and maintaining, a valid record of their testamentary wishes. The Contested Wills Team at Armstrong Legal can help you with any testamentary, probate or estate legal needs. Please call our team on 1300 038 223 to discuss your case, or make an appointment to meet with one of our experienced solicitors.