How is estate distribution handled in Indigenous Australian claims?

Published 10 May 2018

Author: David Cossalter

Variances in how a deceased person's estate is treated and who can claim provision means the formalities of estate distribution differs for Indigenous Australians than other groups.

What defines 'Indigenous Australian'?
The Succession Act 2006 defines an Indigenous Australian as:

  • A person of Aboriginal or Torres Strait Islander descent; or
  • Someone who identifies as Aboriginal or Torres Strait Islander; and
  • Is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community.

This definition emphasises the distinction between an individual's self-identification and wider community acceptance, meaning estate distribution claims for Indigenous Australians can be complex.

Who can make a claim for provision?
Cultural and linguistic differences between Indigenous Australian culture and the general law means the wording used to determine relationships and provision between the deceased and various recipients are open to interpretation. Additionally, the oral tradition of Indigenous Australian social structures means a significant number of Indigenous people don't ever create a formal written Will.

The Succession Act 2006 limits the claimants on an Indigenous Australian's estate to:

  • The personal representative of an Indigenous Australian's estate; or
  • Someone claiming entitlement to share in an estate under the customary traditions of the Indigenous community to which the deceased belonged.

The Act also specifies that any claims must be accompanied by a formal scheme for distributing the estate that's in accordance with the community traditions to which the intestate belonged. The Court cannot cannot make a distribution order unless it's satisfied the terms presented by the estate representative or other party are legally 'just and equitable'. Court officials also require this order to be made with consideration to the traditional laws of the relevant Indigenous Australian group.

How is an Indigenous Australian's estate claim handled?
The Succession Act 2006 defines an order of priority within a standard distribution scheme:

  • A spouse (encompassing multiple definitions).
  • Children.
  • Parents.
  • Siblings.
  • Grandparents.
  • Uncles and aunts.

In Indigenous Australian claims, definitions determining relationships between the deceased and members of their family or community will differ slightly. This accommodates the evolving understanding of what defines the 'Indigenous community' and shifting Indigenous customs. As such, Indigenous Australian estate claims are normally handled on a case-by-case basis, considering the individuals and contents of the estate involved.

With this area of law complex and ever-changing, it's best to get the assistance of a NSW solicitor with years of experience estate planning and Will claims. For more information, please contact Gerard Malouf & Partners Will Dispute Lawyers for a free consultation.

  • NSW Offices
  • North Parramatta
  • Sydney
  • Penrith
  • Ryde
  • Blacktown
  • Liverpool
  • Chatswood
  • Campbelltown
  • Erina
  • Newcastle
  • Wollongong
  • Ballina
  • Tamworth
  • Wagga Wagga
  • Miranda
  • Rockdale
  • Baulkham Hills
  • Bondi Junction
  • Mudgee
  • Tweed Heads
  • VIC Offices
  • Melbourne
  • QLD Offices
  • Brisbane
  • Bundall
  • ACT Offices
  • Canberra City
Phone 1800 004 878 to book a free appointment