Western Australians may be unaware that if they die without a
will (or with a defective will) and they have no relatives who are
entitled to inherit under the Administration Act 1903, the State
Government can end up with all or part of their estate.
The Administration Act 1903 sets out which relative/s are
entitled to inherit an estate in cases of intestacy (that is dying
without a will) or partial intestacy (that is dying without a will
which distributes the whole of the estate).
Section 14 of the Administration Act 1903 sets out the
inheritance entitlements in such cases by reference to who has
survived the deceased. The section starts with "dies
leaving husband or wife" and ends with "dies
leaving no husband or wife and no issue, parent, brother, sister,
child of a brother or sister, grandparent, uncle, aunt or child of
an uncle or aunt" (Note that "Issue" here means
descendent). We will refer to these people as "entitled
In the case of a death with no entitled relative, section 14
stipulates that "the whole of the intestate property
passes to the Crown by way of escheat."
The Escheat (Procedure) Act 1940 sets out the procedure by which
the State of Western Australia would take the estate. The process
appears short but is in fact long because before the State makes
application to the Supreme Court to take the estate, the State (and
subsequently the Supreme Court) must be convinced that there are no
entitled relatives. Yes, that does mean that your Grandmother's
brother who walked out of the family in 1947 after that dispute
over the split up over the farm will need to be found.
Establishing whether there are any entitled relatives may
involve a considerable amount of family research. This is not the
sort of family research where you can be reasonably
confident that you have found the right person; you have to be very
confident that you have found them. Witnesses and addresses on
birth, marriage and death certificates have to be cross checked
with other documents. This can mean that additional such
certificates need to be sourced from other states or other
countries, together with war service and immigration records.
For example, if your Grandfather put his age up for the First
World War and down for the Second, he is going to be difficult to
track and more documents will have to be sourced to confirm that
the two soldiers are the same people.
Add to this that a surprising number of people did not in the
past use their correct name. In fact, even now many married (or
newly single) women have identification documents in two names. You
can begin to imagine the scale of the undertaking.
Long legal processes usually mean large legal bills payable by
the estate (assuming the estate has sufficient funds). This in turn
reduces the eventual payout to the relevant entitled relative or to
the State of Western Australia.
The moral of the story? There are two;
Everyone should have a will.
Have your will drawn up by a lawyer or, if you have drawn up
the will yourself, at least seek legal advice on it because if
drafted incorrectly, unforeseen circumstances (like a beneficiary
dying before you) can result in a complete or partial intestacy. As
you now know, this may result in an unexpected windfall for the
State of WA.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Inheritance Act allows certain groups of people to make a claim against an estate if they can show that the deceased did not make 'reasonable provision' for them in the will.
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