Nicholas Beetham, Business Development Manager, Title Research
A bona vacantia estate is one which will devolve to the Crown, or either of the Duchies of Cornwall or Lancaster as ultimate heirs in England & Wales. This implies that such an estate was the property of an individual who has died intestate (or at least partially so) and without leaving any surviving kin entitled in priority to the Crown (or either Duchy as the case may be). Typically, when trust and estate professionals come across such estates, they sometimes miss out on the commercial opportunities they represent.
This is not too surprising – after all, you need to have a client to extract the grant and instruct you in the administration. And if there’s no-one to hand entitled to it, won’t the estate go to the Crown anyway? Well, not necessarily. This article will consider the probability of the existence of entitled kin and demonstrate the ease with which practitioners who wish to take instructions in the administration of these estates can do so – without being exposed to unrecoverable costs and without any located kin being charged a commission or similar fee of any sort.
To begin
The first thing to bear in mind is that, although an estate may appear to be bona vacantia, the chances of it genuinely being so are very slender indeed. Consider: we have very generous intestacy provisions in England & Wales: eight classes of kin (including even the issue of uncles and aunts of the half blood) are entitled in priority to the Crown. Consider also our national demographic – most of us are members of a family of some sort and it would be surprising if many readers did not have relatives falling within at least one of the admitted degrees of kin. Factor these two propositions together and it becomes almost inevitable that such an estate will yield heirs, and instructions to a practitioner who wants them. Experience bears this out. So, step one is to assume that an estate which seems, on its face, bona vacantia is not – with the right care and feeding, it should easily flourish just like any garden variety intestacy.
However, resist the temptation to refer the file to the bona vacantia authorities. Such referrals very seldom lead to the referring practitioner being instructed in the administration. Although the bona vacantia division of the Treasury Solicitor’s department may occasionally exhibit a somewhat proprietorial approach to these estates, it is difficult to see how it can insist on the matter being referred to it in the absence of a grant (see Treasury Solicitor’s bona vacantia estates practice guide at chapter 7.2.1).
Presumably, before embarking on the exercise, the practitioner will be satisfied that the case is commercially attractive. Once that’s established, it’s necessary to show the probability of the existence of entitled kin. Experience shows that the easiest way to do this is to get help from someone who does this sort of thing for a living – a professional genealogist.
No exposure to unrecoverable costs
Presumably practitioners will not wish to gamble their time, speculating on the outcome of consulting Victorian and Edwardian census returns and the like, in order to determine the extent of the deceased’s paternal and maternal families. The genealogist will do this, as quickly and efficiently as it can be done. A good way of dealing with the costs of doing so is to agree a notional fee budget with the genealogist, authorising him to work within that budget in order to demonstrate that the probability of the existence of entitled kin is high enough to move to the next stage of the exercise, conditional on your being instructed in the administration. Remember - nobody is on the hook for unrecoverable costs.
Family trees
Let’s assume here that preceding classes of kin have been cleared off and the next candidate for research is the class of the deceased’s uncles and aunts of the whole blood and their issue. Once it’s been established that the deceased had, say, six paternal uncles and aunts and a similarly sized maternal family (as is very frequently the case), it’s a pretty good bet that at least some (most? all?) of these uncles and aunts will have married and had children of their own. These will be the deceased’s first cousins – potentially entitled on the intestacy. Where they’ve predeceased, their children (the first cousins once removed), if any, will take per stirpes. Different estates will require different approaches to this exercise and it’s important not to assume that “one size fits all”. The remainder of this article will consider one particular approach that has been shown to work well on numerous occasions – perhaps a future article will consider different methods.
Next step
Now is the time to make an application to your District Probate Registrar for an order under s.116 Supreme Court Act 1981 which provides that: “If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the Grant, the court may in its discretion appoint as administrator such person as it thinks expedient.”
A very effective way of ensuring the application’s success is to ask the genealogist to assist in drafting the supporting affidavit. The writer’s approach is to work closely with a retired District Probate Registrar who will consider each case and draft the affidavit accordingly. Perhaps unsurprisingly, the success rate is high. If the application succeeds, the practitioner will be appointed as administrator himself or herself. The commercial advantage is immediately apparent and the estate can be administered to the practitioner’s usual high standard.
In the unlikely event that the estate proves genuinely bona vacantia, the matter can then be referred to the relevant bona vacantia authority, the practitioner safe in the knowledge that no commercial opportunity has been forgone.
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