Aboriginal Australian receives intestate estate through kinship

Published 27 Feb 2018

A Supreme Court justice has approved an Aboriginal Australian’s application to receive the estate of a fellow Kamilaroi man who died without writing a will.

Justice Francois Kunc handled the rare case, which was only the second of its kind in the state’s history, according to Supreme Court documents. While the matter was uncontested, Justice Kunc wrote an explanation of his decision to help future judges rule on similar incidents.

Before we examine the case in more detail, here is a brief overview of Aboriginal succession laws regarding intestacy in NSW.

Understanding Aboriginal succession law

NSW has the biggest Aboriginal and Torres Strait Islander population in the country. There were approximately 208,500 Indigenous people living in the state in 2011, Australian Bureau of Statistics research shows.

Many national and state laws provide clauses specific to Aboriginal Australians in an effort to recognise the cultural differences between Indigenous and non-Indigenous populations. Succession laws in NSW are no exception.

Part 4.4 of the Succession Act 2006 governs how intestate assets are handled when the deceased is a member of the Aboriginal or Torres Straight Islander community. Notably, the distribution of Aboriginal estates ignores all other intestacy provisions in the Act.

In other words, while non-Indigenous estates are distributed according to a formula – which gives primacy to spouses and children – these rules typically don’t apply to Aboriginal claimants.

What evidence is needed to receive provision?

For Aboriginal claimants, the Act enables a personal representative of the intestate estate, or an individual who claims to be entitled to the deceased’s assets, to apply for an order of distribution.

The usual eligibility rules aren’t required. Instead, the individual must show they are able to receive provision from the estate based on the laws, customs, traditions and practices of the Indigenous population to which they belong. Evidence may include statements from senior members of the community – such as elders – or a Local Aboriginal Land Council endorsement.

In the case before Justice Kunc, the applicant was a man who had lived with the deceased’s family and received their care for many years. Their Kamilaroi community describe this as a kinship relationship whereby the two were essentially brothers, despite not being biologically related.

Two elders provided evidence to this effect, and with no other claimants on the estate, Justice Kunc approved a distribution order to the applicant. The man will now receive the entirety of his kinship brother’s estate, which comprised largely of a superannuation account.

In rare cases such as these, claimants should seek legal advice from experienced contesting wills lawyers who are well versed in Aboriginal succession laws.

Please contact Gerard Malouf & Partners Will Dispute Lawyers if you would like to discuss your case.

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