Escheat (Procedure) Act 1940

The central legal concept is escheat, a feudal doctrine that upon the failure of heirs or the dissolution of a corporation, land (and later other property) reverts to the Crown as ultimate lord. Under this Act, the Crown does not automatically take title; it must obtain a judicial order. The Act defines three key terms. Court means a Judge of the Supreme Court (s 2). Escheated property means real or personal property the subject of an order of escheat (s 2). Order of escheat means an order made under this Act declaring that property has become the property of the Crown by way of escheat (s 2). These definitions are circular: the order creates the status of “escheated property” for the purposes of the Act. The concept of “moral claim” is introduced in s 9 but not defined. It operates as an equitable discretion outside legal and equitable rights. A moral claim is something less than a legal or equitable title: it might cover distant relatives who would have no legal inheritance right, charities, dependants, or others whom the Governor considers deserving. The Act does not specify criteria; it is entirely discretionary. The Consolidated Account is the State’s main bank account. Section 8 directs sale proceeds into it, making escheated property a source of general government revenue. The sheriff is the enforcement officer who seizes and sells property. Under s 10, the sheriff also executes the formal conveyance or transfer, acting as a conduit for title passing from the deceased owner or the Crown to the purchaser or moral grantee. The State Solicitor (before 2004 the Crown Solicitor) is the initiating applicant. The Governor in Executive Council is the Governor acting on the advice of the Executive Council (effectively Cabinet). The Governor’s power under s 9 is a ministerial act, not a personal discretion. The concept of “final and conclusive” in s 7 is significant: it ousts the jurisdiction of appellate courts entirely. There is no right of appeal, no judicial review (other than perhaps for jurisdictional error or fraud, but the Act purports to be absolute). The phrase “on office found” refers to the old inquisitions of escheat: a formal finding by a official (escheator) that the Crown had title. By deeming the court order equivalent to an “office found”, it links the Act to the earlier statutory regime under the Curator of Intestate Estates Act 1918 (now repealed). That Act provided that property of an intestate with no known next-of-kin vested in the Curator. The s 7 deeming provision ensures continuity of procedure. The notice requirements (s 5) are a due process safeguard, though limited. The Act does not require notice to specific known potential claimants (if any are known, the State Solicitor might have a duty to inquire, but the Act does not say). The “person claiming title” under s 6 is any person who asserts a legal or equitable interest.

The Act directly affects the State of Western Australia and its agencies: the State Solicitor (who initiates proceedings), the Treasurer (who instructs the sheriff and receives proceeds), the sheriff (who seizes and sells property), the Governor in Executive Council (who decides moral claims), and the Registrar of Titles (who registers transfers). The primary target of the Act is the estate of a deceased person who dies without leaving a will and without any known next-of-kin, or the assets of a dissolved corporation that have no owner. The Act also reaches property that became ownerless before 1940, creating retroactive exposure for assets that may have been assumed to be private. Persons who might have a claim to the property are directly affected. This includes legal heirs who are unknown or unascertained at the time of the escheat; creditors of the deceased or the dissolved entity; and persons who believe they have a moral claim but no legal right. The Act provides them a window to appear: they may appear at the hearing (s 6) and, if they miss that, they may apply for a legal or equitable claim within 12 months after the order of escheat (s 8(2)). After that, they lose their ability to assert a legal claim. However, s 9 provides a further avenue for moral claims after 12 months, but only if no legal claim has been made. This creates a hierarchy: legal claimants first, then after 12 months, moral claimants. But the 12-month period is quite short and may disadvantage those who do not know about the escheat. Purchasers of escheated property from the sheriff are affected: they rely on the sheriff’s conveyance to pass good title. The Act provides that the conveyance passes the right, title, and interest of the deceased owner or the Crown (s 10(1)). If a later claimant somehow succeeds in upsetting the escheat, the purchaser’s title could be clouded, though the Act’s finality clause and the extinguishment provision under s 9(2) attempt to prevent that. The Registrar of Titles is bound to register transfers upon production of a certified copy of the court order or Governor’s order, which simplifies registration but places responsibility on the Registrar to verify the order. Legal practitioners advising on estate administration, corporate dissolution, or property transactions need to understand the Act to assess whether property may be at risk of escheat or whether a client has a claim to escheated property. The Act also affects persons who might be moral claimants: distant relatives, dependants, charities, or others who might appeal to the Governor’s discretion. They must apply within an unspecified time (the Act says “on application in that behalf” but no time limit for the Governor to act; the trigger is that 12 months have passed since the order of escheat). But s 9(2) extinguishes all claims once the Governor makes an order, so anyone with a moral claim should apply before the Governor grants property to someone else. The Act does not require the Governor to publish or advertise the availability of moral claims. This makes the process opaque and potentially unfair to those who do not learn of the escheat.

The primary duty is on the State Solicitor to apply to the Supreme Court when it appears that property has escheated to the Crown (s 4). The word “may” suggests discretion, but there is no statutory compulsion; the Crown may choose not to apply if the property is worthless or if it would be politically sensitive. However, the Act does not impose a time limit on the State Solicitor to apply. The State Solicitor must also comply with the notice requirements: publish in the Gazette and a local newspaper, and affix notice to real property at least one month before the hearing (s 5). The duty is strict: if notice is not given, the court may refuse to hear the application or may adjourn. The notice must state the day and hour of the application. There is no requirement to name the deceased or the dissolved company, or to describe the property in detail; the Act is silent on content. The court’s duty is to hear the application and decide whether the property has escheated. The court may summon witnesses (s 6). The court must make an order “may declare” - it has discretion. If the court is satisfied, it must declare the property Crown property. The court’s order is final and conclusive and not liable to review on appeal (s 7). This is a strong ouster of appellate jurisdiction, raising potential issues of natural justice if the hearing is flawed. The right of any person claiming title to appear and give evidence is granted by s 6. This includes the right to cross-examine witnesses and be represented by counsel. The court can also summon witnesses. However, the Act does not provide any right to appeal if the person loses; the order is final. The sheriff’s duties under s 8 are triggered by instructions from the Treasurer. The sheriff must seize and sell the property and pay proceeds to the Treasurer for the Consolidated Account. The sheriff must also execute conveyances or transfers under s 10. The Treasurer’s duty is to receive proceeds and carry them to credit of the Consolidated Account. Under s 8(2), the Governor in Executive Council may repay or make good money to a person who establishes a legal or equitable claim. This is a power, not a duty. The word “may” indicates discretion. The repayment is without interest. The Governor also has a power under s 9 to grant property or proceeds to persons with moral claims. Again, it is discretionary. The Governor may impose terms and conditions. The Governor’s order extinguishes all claims against the Crown and the recipient. The rights of a legal or equitable claimant are to apply under s 8(2) for repayment or restitution. The Act does not specify a procedure for that application; presumably it is made to the Treasurer or the Governor. The 12-month window runs from the date of the order of escheat. After that, if no legal claim has been made, the Governor can exercise the moral claim power. A moral claimant has no legal right; they must rely on the Governor’s discretion. The buyer of escheated property receives good title: the sheriff’s conveyance passes the right, title, and interest of the deceased owner or the Crown (s 10(1)). The buyer also benefits from the finality and extinguishment provisions. The Registrar of Titles has a duty to register a transfer upon production of the transfer and a certified copy of the court order or Governor’s order. No costs may be awarded against any party (s 11(2)). This means that even an unsuccessful applicant (i.e., the Crown) cannot be ordered to pay the costs of a successful claimant who appears and defeats the escheat application. Conversely, the Crown cannot recover its costs if it wins. This creates a perverse incentive: a claimant with a strong case may still bear their own legal costs, while the Crown always bears its costs.

The Act itself does not impose any criminal penalties or civil fines for non-compliance. Enforcement mechanisms are procedural rather than punitive. If the State Solicitor fails to give proper notice under s 5, the court may refuse to hear the application or may adjourn it to allow further notice. The court has inherent jurisdiction to control its own process, so defective notice could lead to the application being dismissed. If any person claiming title fails to appear, they lose the opportunity to be heard at that stage. But they retain the right to apply under s 8(2) for legal or equitable claim within 12 months, and after that perhaps under s 9 for moral claim. If the sheriff fails to execute a conveyance or transfer as directed by the court order or the Governor’s order, the sheriff could be subject to mandamus or other supervisory orders. The Act does not specify consequences, but the sheriff is a public officer. If the sheriff sells property without proper instructions from the Treasurer, the sale could be challenged as unauthorised, but the Act provides no specific remedy. The Registrar of Titles must register a transfer under s 10(2). If the Registrar refuses to register, the applicant could seek orders from the Supreme Court. There is no penalty provision for the Registrar. The Governor’s order under s 9 is final and extinguishes claims. If someone makes a fraudulent moral claim, the Governor could presumably revoke or vary the order, but the Act does not say so. The extinguishment clause (s 9(2)) would protect the recipient, but fraud might allow a court to set aside the order for fraud on the Crown. The Act does not address that. There are no criminal offences for making false claims, for failure to disclose an interest, or for interfering with escheated property. Possibly common law offences such as theft or fraud could apply if someone knowingly misappropriates escheated property, but the Act does not create specific offences. The main enforcement tool is the finality of the court order: once the order is made, title vests in the Crown and the sheriff can take possession and sell. If a person refuses to vacate premises or hand over assets, the sheriff may need to seek a writ of possession from the court, but the Act does not provide a specific mechanism; it relies on general enforcement of court orders.

The Act specifically interacts with the Curator of Intestate Estates Act 1918 (repealed by the Public Trustee Act 1941). Section 7 deems an order of escheat to be “on office found” within the meaning of s 16 of that Act. That provision allowed the Curator (now the Public Trustee) to deal with property of intestates with no known next-of-kin. The effect is that property already vested in the Curator under that Act may still be subject to escheat proceedings, but s 8(1) expressly excludes from sale any real or personal property vested in the Curator under the 1918 Act. So the Curator (now Public Trustee) retains control, and the escheat order does not automatically give the sheriff power to sell. The Public Trustee Act 1941 replaces the Curator’s office; the exclusion likely carries over by implication. The Transfer of Land Act 1893 is directly engaged. Section 10(2) requires the Registrar of Titles to register transfers of Torrens land upon production of a certified copy of the court order or the Governor’s order. This overrides any requirement for a normal chain of title. The Registrar is bound to register even if there are caveats or other interests, because the Act provides that the order is final and conclusive. However, if a caveat had been lodged before the escheat application, the court would likely hear the caveator under s 6. The Transfer of Land Amendment Act 1996 and 2022 updated references to the Registrar of Titles and likely electronic lodgment provisions. The Financial Administration Legislation Amendment Act 1993 and Financial Legislation Amendment and Repeal Act 2006 changed the accounting provisions: originally proceeds went to the “Treasury” or a specific fund, now they go to the Consolidated Account. The Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 changed references from Crown Solicitor to State Solicitor. The Act does not interact with the Fatal Accidents Act or the Administration Act directly, but those Acts govern distribution of estates; if no beneficiaries exist under those Acts, escheat may apply. The Crown can also claim bona vacantia under common law; this Act provides the procedure for escheat of real property. The distinction between escheat (real property) and bona vacantia (personal property) is blurred; the Act applies to “real or personal property” (s 2 definition of escheated property). So it covers both. The Act does not apply to property that is already vested in the Crown under other statutes, such as the Unclaimed Money Act or the Public Trustee Act. Those have separate procedures. If the Public Trustee holds unclaimed estates, the State Solicitor may still apply for an escheat order, but the property cannot be sold under s 8 if it is vested in the Public Trustee. There may be tension with the common law rule against perpetual ownership; the Act allows the Crown to take property which might otherwise have no owner.

The Escheat (Procedure) Act 1940 (WA) No. 45 of 1940 received assent on 30 December 1940 and commenced on the same day. It has been amended six times. In 1993, the Financial Administration Legislation Amendment Act 1993 (No. 6 of 1993) amended s 8 to replace references to the “Treasury” with the “Consolidated Account,” aligning with modern financial administration. In 1996, the Transfer of Land Amendment Act 1996 (No. 81 of 1996) amended s 10 by substituting references to the “Registrar of Titles” for outdated terms and updating the registration procedure. In 2003, the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (No. 65 of 2003) amended s 4 to replace “Crown Solicitor” with “State Solicitor” and included a transitional savings provision (s 97) allowing references to Crown Solicitor in existing documents to be read as State Solicitor where context requires. In 2006, the Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006) further amended s 8 to replace “the Treasurer to the credit of the Consolidated Fund” with wording directing payment to the “Consolidated Account,” reflecting the renaming of the fund. In 2022, the Transfer of Land Amendment Act 2022 (No. 21 of 2022) amended s 10(2) by substituting “Registrar of Titles” with “Registrar of Titles” (a stylistic update to remove the definite article “the” before “Registrar”) and likely updated cross-references to electronic registration. The list of amendments shows the Act has not been significantly restructured; it remains a short, focused procedural statute. The original Schedule (repealing earlier ordinances) has been omitted under the Reprints Act 1984 s 7(4)(f). Section 3 was also omitted; it presumably contained the repeal provisions. The Act has been reprinted several times, most recently as at 2023. The amendment history reveals that the Act has only been tinkered with on housekeeping matters: updating officer titles, aligning with financial legislation, and updating Torrens system procedures. The core provisions on notice, hearing, claims, and moral grants remain unchanged since 1940. This suggests the Act has been used rarely or that its procedures have been found satisfactory. However, the lack of amendment to the 12-month limit for legal claims or the appeal prohibition may indicate a policy choice to keep the process simple and final. The 2003 change from Crown Solicitor to State Solicitor reflects the merger of those offices.

The Act itself does not cite any cases, and the provided source does not include any judicial decisions or case annotations. However, the provision in s 7 that orders are final and conclusive and not liable to review on appeal is likely to have been tested in litigation. The High Court of Australia has long held that privative clauses (ousting judicial review) are ineffective to exclude review for jurisdictional error (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). Although s 7 attempts to bar appeals, a person affected by an escheat order could still seek judicial review on the ground that the court lacked jurisdiction (e.g., the property had not in fact escheated) or that natural justice was denied. The Western Australian Supreme Court would have appellate jurisdiction to correct errors of law on the face of the record unless the privative clause is effective. Given the strong wording, litigants might have challenged the order’s validity. There is no known publicised case directly on this Act in the available source. The Act has been invoked in estate administration cases where the Public Trustee has sought directions. The Curator of Intestate Estates Act 1918 (now repealed) interacted with this Act, and cases under that Act might have discussed escheat. The finality clause also affects claims under s 8(2) and s 9: once 12 months pass, a legal claimant is barred, but could argue that the 12-month limit is unreasonable and therefore invalid. There might be challenges under the Australian Constitution s 75(v) (original jurisdiction of the High Court for relief against an officer of the Commonwealth) but this is a State Act. The litigation history is sparse; the Act has likely been used infrequently. The moral claims process under s 9 may have been used in a few cases, but no published decisions are referenced. Practitioners should note that the finality clause is not absolute; it can be circumvented by showing that the court acted without jurisdiction or that fraud was involved. The High Court’s approach to privative clauses means that an aggrieved claimant may still seek declaratory relief or certiorari. The Act does not expressly exclude judicial review, though it attempts to exclude appeal. The distinction between appeal and review is critical.

Several traps await the unwary. First, the order of escheat is final and conclusive and not liable to review on appeal (s 7). This means if a person with a legitimate claim does not appear at the hearing, they lose the chance to contest the escheat. Even if they have a strong legal claim, they cannot appeal the order. Their only remedy is to apply under s 8(2) for repayment or restitution, but that is within 12 months of the order. If they miss that window, and no legal claim is made, they may still ask the Governor for a moral grant under s 9, but that is discretionary and they have no legal right. Second, the 12-month period in s 8(2) runs from the date of the order of escheat, not from when the claimant learns of the order. The notice published under s 5 may not reach distant heirs or creditors, especially if they live overseas. The Act does not require personal service on known claimants. Third, under s 8(2) any repayment is without interest. The Crown keeps the benefit of the money for the period it was held in the Consolidated Account. Fourth, the Governor’s power under s 9 to grant property to moral claimants extinguishes all claims, even those that might later arise. So if the Governor grants property to A on a moral claim, B (who had a legal claim but missed the deadline) cannot later recover from A. B’s only recourse would be against the Crown, but the Act extinguishes claims against the Crown as well. Fifth, the Act does not prescribe a procedure for the moral claim application. The applicant must approach the Governor in Executive Council, but how? The Act is silent. Presumably an application is made in writing to the Minister for Justice or the Attorney General, but no form is specified. Sixth, no costs may be awarded against any party (s 11(2)). This cuts both ways. A person who successfully defeats an escheat application must bear their own costs. This could discourage claimants from appearing, especially if the property value is modest. The Crown also bears its own costs, but it has the State Solicitor’s office absorbing them. Seventh, the sheriff’s sale under s 8 is not subject to any reserve price or independent valuation requirement. The sheriff may sell at a low price, potentially less than fair market value, and the proceeds go to the Consolidated Account. The only recourse is a legal claim under s 8(2) for the proceeds, but the claimant would receive only what was received, not the fair value. Eighth, the Act applies to escheats before 1940 (s 4). This means property that escheated decades ago could still be subject to a new application. The notice requirements may be impractical for very old escheats. Ninth, the Act does not require the State Solicitor to inquire about potential claimants before applying. The State Solicitor may simply rely on the apparent absence of heirs. If there is a known heir but the State fails to notify them, the heir may still be able to challenge the order for jurisdictional error (the Crown must give notice, but s 5 only requires publication and affixing, not personal notice). Tenth, the definition of escheated property is “real or personal property the subject of an order of escheat.” This circular definition means that until an order is made, property is not “escheated property.” So the Act does not apply to property that has escheated but for which no order has been made. The Crown cannot rely on the Act to take possession until the order is granted.

For a legal practitioner advising the Crown or a potential claimant, compliance requires careful attention to the Act’s procedures. For the State Solicitor initiating an escheat application: Step one, identify property that appears to have escheated. This usually occurs when a person dies intestate with no known next-of-kin, or a corporation is dissolved leaving assets. Step two, make an application to a Judge of the Supreme Court under s 4. Step three, give notice under s 5: publish in the Government Gazette and a newspaper circulating in the district where the property is situated at least one month before the hearing. For real estate, affix notice to the premises or leave it with someone at the premises. The notice must state the day and hour of the application. Step four, attend the hearing. Any person claiming title may appear. The State Solicitor should present evidence that the property has escheated (e.g., death certificate, letters of administration showing no known kin, certificate of dissolution). Step five, if the court makes an order, the State Solicitor must ensure the sheriff receives a copy. For the sheriff: upon instructions from the Treasurer, seize the property and sell it. The sheriff must execute a conveyance or transfer under s 10. For the Treasurer: receive proceeds and pay them into the Consolidated Account. For a person claiming a legal or equitable interest: appear at the hearing under s 6. Claimants should bring evidence of title, heirship, or debt. If they cannot attend, they may apply under s 8(2) for repayment within 12 months of the order. The application should be made to the Treasurer or the Governor in Executive Council. They must establish a legal or equitable claim. The Act does not specify the form, but a statutory declaration and supporting documents would be prudent. After 12 months, the only avenue is a moral claim under s 9. Applicants should write to the Minister for Justice or the Attorney General, explaining the moral basis. The Governor in Executive Council will decide. For a purchaser of escheated property: obtain a conveyance from the sheriff. For Torrens land, obtain a certified copy of the court order from the Supreme Court and present it with the transfer to the Registrar of Titles. The Registrar is bound to register. For moral grantees: after the Governor’s order, the sheriff executes a conveyance. The grantee must then register if Torrens land. For legal practitioners generally: advise clients that the 12-month window under s 8(2) is strict and that no appeal is available. Monitor the Government Gazette for escheat applications if you have clients who may be potential heirs. If a client has a moral claim but no legal right, act quickly after the 12-month period to seek a discretionary grant. Note that s 9(2) extinguishes all claims once an order is made, so a moral claimant should try to be first in line. The Act does not require the Governor to publish its orders, so an applicant may not know if a grant has been made to someone else. Practitioners may need to make inquiries. Finally, keep records of all notices and orders for future reference, as the Act may be invoked many years later.