Indigenous Australian parents fight over son’s estate

Published 19 Jun 2018

The mother of a man who died without a will in 2016 has fought her former partner for control over their son’s estate using Aboriginal laws contained within the NSW Succession Act.

When a person passes away before drafting a will, they are legally defined as having died ‘intestate’. The Act provides a formula for an estate’s distribution in these circumstances, with assets generally going to the deceased’s spouse and children first.

In this case, the man died without leaving a spouse or children, so his parents are next in line to receive his $357,000 estate under non-Indigenous intestacy rules. His mother and father, who have never married and live apart, would traditionally split the legacy. However, the deceased’s mother sought a distribution order to obtain the whole estate, effectively cutting her son’s father out of his inheritance.

Understanding Indigenous Australian succession

Succession expectations for Indigenous and non-Indigenous Australians often differ due to the unique cultural distinctions between the two.

For example, non-Indigenous Australians typically have linear familial structures, whereby assets and traditions pass directly from parents to children across each generation. Indigenous communities are more collateral, which means children are commonly brought up by uncles, aunts, grandparents and other close relatives in addition to, or instead of, their biological parents.

The Act accounts for these differences by enabling the courts to set aside traditional intestacy rules. Instead, a judge is entitled to assess the laws, customs, traditions and practices of the relevant Indigenous group and make an estate distribution decision based on cultural factors.

How did the judge rule on inheritance dispute?

The deceased’s mother and father were the plaintiff and defendant in the case, respectively, with both continuing to live as part of the Nucoorilma Clan of the Gomeroi People.

According to the plaintiff, the community’s intestacy traditions would require an estate to pass to whomever bore responsibility for, cared for and provided for the deceased during their life. The plaintiff argued this entitled her to the estate because her son had lived in her household from birth until death. To support her claim, she provided various letters and affidavits signed by community leaders and experts on local culture.

Justice Geoff Lindsay acknowledged the Act’s exceptions for Aboriginal communities, but still felt the deceased would have wanted to provide for his father, even though they were not close.

He awarded the father a legacy of $40,000 and made a distribution order for the plaintiff to receive the remainder of the estate, which was approximately 80 per cent of the total.

Contact an experienced lawyer about Indigenous succession

Inheritance disputes are often complex, but matters may become even more challenging when the courts must consider Indigenous succession laws.

Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers have decades of experience handling difficult cases in NSW, so please contact us today to learn more about our no-win, no-fee service.

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