The Passive Probate Defence and Costs
This article is concerned with what might be described as the ‘passive probate defence’ contained in CPR 57.7(5), and more…More
Part of the role of the Government Legal Department (GLD) is to administer in favour of the Crown those estates which fall to the Crown as Bona Vacantia – i.e. the estates of people who have died intestate and with no family entitled to the estate on intestacy.
Historically, the GLD’s Bona Vacantia Division’s policy was to encourage – almost require – Local Authorities, Solicitor firms and anyone else with the estate of a person who had died apparently intestate and with no known surviving family to refer the matter to it. The Division would make its own enquiries as to the existence of a will, failing which surviving entitled kin. Its enquiries were often negative or inconclusive and so the Division would advertise the estate as Bona Vacantia. In very many cases kin were brought forward to claim the estate by probate genealogists – sometimes referred to as heir hunters. Unclaimed estates would be administered in favour of the Crown.
That entitled relatives were found is not altogether surprising: consider the generosity of our intestacy provisions (there are eight classes of kin entitled in priority to the Crown) and couple that with the national demographic: entitled relatives are highly likely to exist and, given the resources available to probate genealogists, can almost always be identified and found.
Accordingly, it has become clear to the Division that a great many of the cases referred to it are not Bona Vacantia and should not be referred to the Division. On its website, the Division sets out its policy regarding referrals to it:
Before you refer an estate
BVD does not deal with estates where:
As we have seen above, the overwhelming probability is that entitled relatives do exist and can be found.
Furthermore, the Head of the Division recently went on the record to set out the Division’s policy on when to refer cases to it, saying: “Our position is that as over 80% of estates* referred to the Government Legal Department (GLD) each year are not Bona Vacantia, we should aim to give up the Crown’s interest in such estates as quickly as possible. Ideally, of course, our preference would be that these estates are not referred here in the first place as it is not appropriate that GLD is used as a tracing agency for missing kin or executors. Furthermore, it is our view that before anyone refers an estate to GLD they should be as sure as they can be that the estate is, in fact, Bona Vacantia.”
The position is clear – there is no need to refer a matter to GLD unless you are as sure as you can be that the matter is, in fact, Bona Vacantia.
At Fraser and Fraser, we can establish the true position quickly and easily. The combination of the research resources and tools available to us and our highly experienced case managers means that we can identify and locate next of kin routinely. In the highly unlikely event an estate is genuinely Bona Vacantia, we are happy to refer it to GLD on your behalf, unless you’d prefer to do so yourself.
*our experience is that more than 95% of apparently Bona Vacantia estates are not genuinely so.