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Digest of the Week | Escheats and Bona Vacantia

Escheats and Bona Vacantia


Szlavik Estate v. New Brunswick | 2018 NBQB 52 | New Brunswick Court of Queen's Bench


Estates -- Intestate succession -- Escheats and bona vacantia


Deceased was born in Hungary, she came to Canada as refugee and became Canadian citizen, she worked as university professor, and she died single with no children -- There was approximately $129,000 remaining in deceased’s estate -- Public Trustee sought directions respecting appropriate procedure to follow regarding disposition of funds -- Public Trustee took all reasonable steps to determine whether deceased had last will and testament, as well as lawful heirs, and took reasonable investigative measures to seek out last will and testament and lawful heirs -- On balance of probabilities, deceased died intestate and without lawful heirs -- Crown in right of Province of New Brunswick was entitled to personal property in circumstances where person last entitled to it died intestate in New Brunswick and without lawful heirs -- Escheats and Forfeitures Act was proper statute under which Public Trustee may establish legal right to estate of deceased pursuant to escheat order -- Spirit of Act was to provide mechanism to dispose of real and personal property in Province of New Brunswick that may be taken by Crown as result of intestacy, and fact that limited statute specifically referred to both real and personal property was persuasive that intention of legislature was to provide mechanism to deal with both -- Requiring Public Trustee to proceed pursuant to historical common law doctrine of bona vacantia would be unnecessarily cumbersome and contrary to plain directions set out in Act -- Public Trustee must commence application pursuant to Rule 16.04 of New Brunswick Rules of Court to seek direction and/or order to establish Crown’s entitlement to personal property in circumstances where person last entitled to it died intestate in New Brunswick and without lawful heirs -- Rule 16.04 clearly set out nature of declaratory and other relief that could be sought respecting estate, and it applied regardless of whether or not estate was one of intestacy -- Appropriate standard of proof to establish Crown’s entitlement to personal property in circumstances where person last entitled to it died intestate in New Brunswick and without lawful heirs was balance of probabilities -- Public Trustee took all reasonable steps in circumstances to ensure deceased died intestate and without lawful heirs -- Crown was granted ownership of personal property and was entitled to balance of funds held trust by Public Trustee for deceased’s estate, subject to succession taxes, debts, administration fees and expenses, Public Trustee fees and expenses, and fees and expenses of passing of accounts.
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