Intestacy Rules for Indigenous Australians (NSW) | Armstrong Legal

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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Intestacy Rules for Indigenous Australians (NSW)


The Succession Act 2006 introduced amendments to intestacy law in New South Wales partially in response to the recommendations of the National Committee for Uniform Succession Law. These amendments were intended to make succession law more responsive to the distinctive family structures and customs of Indigenous Australians. An Indigenous person is a person of Aboriginal or Torres Strait Islander descent, who both identifies with, and is accepted as, a member of an Aboriginal or Torres Strait Islander community. This article examines the effect of these amendments on intestacy rules for indigenous persons in NSW.

A Western View of Family

Broadly speaking, Australian intestacy law privileges the nuclear family, with an order of succession starting with the deceased’s spouse and children, and then moving to their parents, siblings, grandparents, and finally to more “distant” relatives including uncles and aunts, and finally, cousins. This order of succession is reflective of a western view of family relationships that privileges lineal bloodline relationships.

Aboriginal customary law and social structures do not have this strong focus on lineal bloodlines. Although communities differ, Indigenous kinship typically reflects customary law dependencies and obligations that are knitted into the social fabric. These kinships laws often incorporate collateral, adopted or maritally linked relatives into a family.

Aboriginal communities also commonly privilege “acceptance” as a critical aspect in the identification of family. As a result, a deceased may consider someone who is a distant relative in terms of bloodlines to be a child or sibling on the basis of accepted kinship rules. Prior to the 2006 amendments, succession law in NSW made inadequate allowance for these kinship relationships.

Intestacy

Intestacy is an area of succession law that is of particular importance in relation to Indigenous Australians because there is a higher incidence of intestacy within these communities in comparison to non-Indigenous Australians. The National Committee for Uniform Succession Laws attributes the high rate of intestacy to a number of factors, including Indigenous mobility and disparate cultural practices. In addition, Indigenous Australians traditionally have a different perspective on the ownership of real property. Under customary law, land is not an inanimate commodity that can be bought or sold: it is a sacred, living entity. As such, there is less focus on the legal transfer of ownership of property and greater emphasis on personal and spiritual connection to the land.

Although Indigenous Australians may not culturally apply the same significance to the legal ownership of property, it is nevertheless preferable that their estates are distributed according to their wishes rather than the statutory rules of intestacy. With the help of a solicitor, an Indigenous testator can reflect customary law obligations and incorporate custodianship clauses in his or her will that are in accordance with traditional laws, customs, traditions and practices.

Traditionally, the state government inherits the property of an intestate person with no relatives in the order of succession. This intestacy law does not account for Indigenous family structures. Following the amendments to intestacy rules in the Succession Act 2006, the estate of an Indigenous Australian in NSW can now pass to any person who is a close relative according to the Indigenous deceased person’s laws and customs. The personal representative of the Indigenous person’s intestate estate, or a person who claims entitlement under the “laws, customs, traditions and practices of the Indigenous community or group”, can apply for a distribution of the intestate estate beyond the traditional line of succession.

The application for provision must be made within a year of the issuance of the Grant of Letters of Administration and must include a scheme for distribution of the estate in accordance with the customs and practices of the Indigenous person’s community. The applicant will need the assistance of the elders of the clan to prepare the scheme for the distribution of the estate.

The Supreme Court of NSW applied this statutory provision recently in the Estate of Mark Edward Tighe [2018]. In this case, the deceased died intestate and left behind no next of kin as defined under the order of succession. His estate was saved from government acquisition as another Indigenous Kamilaroi man made an application to receive the deceased’s intestate estate. The applicant lived with the deceased’s family and the deceased cared for the applicant for most of his life. The deceased, applicant and the Kamilaroi community regarded them as brothers. Kamilaroi elders established that under their traditions, customs and practices, the applicant was expected to inherit in the absence of any other family members. As no other claim was filed, and the applicant gave reasonable notice, the court awarded the entire estate to the applicant.

If you are an Indigenous Australian who wishes to make a will, or you have questions about intestacy rules for Indigenous Australians in New South Wales, the wills and estates solicitors at Armstrong Legal can assist you. Our contested wills team can help if you need legal representation to dispute the distribution of an Indigenous person’s intestate estate. Please call our offices on 1300 038 223 or contact us with any probate or succession matter.

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