Bona Vacantia

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    ‘Bona Vacantia’ literally means vacant goods and is the legal term given to ownerless property that passes to the Crown. This most often occurs when someone dies intestate and with no living or traceable family.

    It has largely replaced the doctrine of escheat which had a similar effect in relation to feudal tenures. Escheat was a common law doctrine that operated to ensure that property was not left ownerless. It originally referred to a number of situations where a legal interest in land was destroyed by operation of law, so that the ownership of the land reverted to the immediately superior feudal lord.

    Most common-law jurisdictions have abolished the concept of feudal tenure of property and so the concept of escheat has lost something of its meaning. Even in England and Wales, where escheat still operates as a doctrine of land law, there are unlikely to be any feudal lords to take property on an escheat, so that in practice the recipient of an escheated property is The Crown.

    The term is often now applied to the transfer of the title to a person’s property to the state when the person dies intestate without any other person capable of taking the property as heir. For example, a common-law jurisdiction’s intestacy statute might provide that when someone dies without a Will, and is not survived by a spouse, descendants, parents, grandparents, descendants of parents, children or grandchildren of grandparents, or great-grandchildren of grandparents, then the person’s estate will escheat to the state.

    Where property passes Bona Vacantia s.46(1) (vi) of the Administration of Estates Act 1925 gives the Crown the discretion to make provision for dependents of the deceased whether they are related to them or not. The  provisions are similar to those contained in the Inheritance (Provision for Family and Dependants) Act 1975. It is the Treasury Solicitor’s policy to require a claimant to bring proceedings under this 1975 Act. This ensures that all those who are entitled to claim are party to any compromise that is reached and minimises the risk of any late claims being made on the estate. This requirement can be waived by the Crown where an estate is less than £20,000 or it would not be reasonable to expect a person to make a claim under the Act, such as where a claimant is elderly and frail. In these cases the Crown can make grants without requiring the commencement of action. There may be circumstances where it is more advantageous to claim under Bona Vacantia rather than the 1975 Act such as where a cohabitant makes a claim. Under the 1975 Act the claim must be for ‘reasonable’ financial provision only; there is no such restriction under Bona Vacantia.

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    Matt Walkden Will Writer

    About Matt Walkden

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