Australian succession law is largely derived from UK succession law, which when imported contained pre-formed concepts of property, property rights, familial structures, and an expectation of succeeding to property. However, these concepts do not easily accord with Australian Indigenous customary law, where notions of spiritual and cultural obligations to property, land and persons, and complex kinship relationships are paramount. The Succession Act 2006 (NSW) attempts to bridge this gap in Part 4.4 which deals specifically with the distribution of Indigenous persons’ estates where they have died, as many indigenous persons do, intestate (without a will).
What is the Definition of an Indigenous Person Under The Succession Act 2006 (NSW)?
Pursuant to section 101 of the Succession Act 2006 (NSW), an Indigenous person is 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.
It is important to note that these three elements are cumulative and not independent. Any claimant on an Indigenous intestate’s estate must not only be of Indigenous descent, but also must identify as being Indigenous and be accepted by an Indigenous community as being an Indigenous person.
Who Can Make a Claim for Provision?
Pursuant to section 133 of the Succession Act 2006 (NSW), the claimants on an Indigenous intestate’s estate are limited to:
the Indigenous person’s personal representative; or
people claiming to be entitled to a share in an intestate estate under the laws, customs, traditions, and practices of the Indigenous community or group to which the Indigenous intestate belonged.
As Indigenous kinship relationships differ significantly to that of non-Indigenous Australians, any application made under this section must be accompanied by a scheme for distribution which reflects the laws, customs, traditions, and practices of the community to which the intestate belonged.
What is the Time Period During Which an Application May be Made?
An application under section 133 of the Succession Act 2006 (NSW) must be made within 12 months of the grant of administration unless otherwise allowed by the Court. However, no application can be made after the intestate estate has been fully distributed.
What is a Typical Distribution Scheme in an Indigenous Australian’s Estate Claim?
As Indigenous kinship relationships are complex and varied, Indigenous Australian’s estate claims are typically determined on a case-by-case basis with reference to the laws, customs, traditions, and practices of the particular community the intestate was a part of.
For example, in The Estate of Mark Edward Tighe [2018] NSWSC 163, Mr. Tighe, a Kamilaroi man, died intestate without being survived by anyone who would typically benefit under the laws of intestacy. Mr. Campbell, who had been cared for and resided with Mr. Tighe’s family for most of his life, and accordingly was considered by the Kamilaroi community as his brother, brought a claim under Part 4.4 of the Succession Act 2006 (NSW) to receive Mr. Tighe’s estate. Evidence of the Kamilaroi laws, customs, traditions, and practices which established this kinship relationship was provided by Kamilaroi elders, and Mr. Campbell’s claim was successful.
Want to learn more? Ready to speak to a lawyer? Get in touch with us.