Intestacy Rules for Indigenous Australians
In 2009, the New South Wales Parliament passed the Succession Amendment (Intestacy) Act (Amendment Act), an Act to amend the Succession Act 2006 (NSW) (Succession Act) and the Probate and Administration Act 1898.
Prior to the amendments, there was no separate legislative provision for the operation of the intestacy rules for indigenous people in New South Wales.
Section 101 of the Succession Act, defines an Indigenous person as “a person who:
- is of Aboriginal or Torres Strait Islander descent, and
- identifies as an Aboriginal person 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.
In line with the National Committee on Uniform Succession Law’s recommendation, the Amendment Act provides “an alternative regime for the distribution, in appropriate cases, of the intestate estates of Indigenous people”, by inserting sections 133, 134 and 135 into the Succession Act. Broadly, these sections permit “The personal representative of an Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged, to apply to the Court for an order for distribution of the intestate estate”. Such application must be made within “12 months of the grant of administration” and “must be accompanied by a scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged”.
According to the Law Society of New South Wales, “Preparing a scheme for distribution of the estate will require the assistance of elders of the clan to which the deceased belonged.”
The high rate of intestacy among Indigenous Australians, and the fact that existing intestacy law did not reflect Indigenous relationships and traditions, made the introduction of the amendments to the Succession Act a necessity. The necessity has been canvassed by various experts:
- The Law Society of New South Wales has noted Indigenous Australians as having the “lowest rate of will-making in Australia”.
- The National Committee for Uniform Succession Laws attribute “the incidence of intestacy among Indigenous communities” to a number of factors, including “literacy, mobility and differing cultural practices.”
- Parliamentary Secretary, Barry Collier explains, generally “the basic order of distribution” of an intestate estate is “first, spouse and children; second, parents; third, siblings; fourth, grandparents… fifth, aunts and uncles”, and finally cousins. However, such an order reflects a narrow, Western view of family relationships.
- The University of New South Wales, Law Professor, Prue Vines explains, “lineal bloodline relationships”, strongly contrasts with “acceptance of collateral, adopted or maritally linked relatives in Aboriginal customary law.”
MP Barry Collier commented that the amendments “mark the next step for New South Wales in implementing the recommendations of the National Committee on Uniform Succession Law”.
Going forward, Professor Vines sees another possible avenue to ensuring that succession law better serves Indigenous Australians “is to increase will making in the Aboriginal community”. In accordance with the principle of testamentary freedom, within their Wills Indigenous Australians could set out “customary laws obligations”, along with “custodianship”, “property and obligations” and “guardianship and control of children” which are in accordance with traditional “laws, customs, traditions and practices”.
Author: Merryn Lynch, Solicitor