Indigenous Estate Distribution in NSW: Can You Still Inherit?
- Justeen Dormer
- 3 days ago
- 8 min read
Being told you get nothing is not always the end of it. In New South Wales, when an Aboriginal or Torres Strait Islander person dies without a Will, the Court can change what would happen under the usual intestacy rules after considering the relevant laws, customs, traditions and practices of the community or group the person belonged to. You can ask for this even if the standard rules leave you out. It is called a distribution order, and there is a time limit on it. The same can apply where they left a Will that does not cover everything.
A note for Aboriginal and Torres Strait Islander readers. This article talks about death and estates. We know Sorry Business comes first. The legal steps below can wait a short while, but limits apply so please read the part about time limits when you are ready.
Can they really do this to me?
Often they cannot, if your community says the estate is yours. The Supreme Court may change what would happen after considering the relevant laws, customs, traditions and practices of the deceased’s community or group.
When a person dies without a Will, the law calls that dying intestate. Ordinary intestacy rules then decides who inherits. The list starts with a spouse (which includes a husband, wife, or de facto partner), then children, then parents, then siblings, then grandparents, then aunts and uncles.
Think of that list as a form with fixed boxes. It works by legal relationship categories (for example, whether the law recognises someone as a spouse or child). Those legal categories may not reflect Aboriginal and Torres Strait Islander kinship relationships, family structures or caring responsibilities.
Aboriginal and Torres Strait Islander families often do not fit. You might be a brother in every way that matters, without sharing a parent. You might be the aunty who raised him. The list cannot see any of that.
So a close family member can be told they get nothing. Sometimes nobody on the list is left at all. When that happens, the money goes to the government.
What can I do about it?
You can ask the Supreme Court for a distribution order.
A distribution order is a decision by the Court. It shares out the estate the way your community’s laws, customs and traditions would. The estate means everything the person owned when they died.
The power comes from Part 4.4 of the Succession Act 2006. That is the only law reference in this article, and you do not need to know any more than the name.
Two things go with the application. A written plan showing how the whole estate should be shared. And evidence about your community’s laws and customs. Both are explained below.
You do not have to be on the fixed list to apply. You need a genuine, arguable claim under your community’s laws and customs. That is a low bar to get started.
How long do I have?
You have 12 months from the grant of administration.
A grant of administration is the Court paper that gives someone legal power to deal with the estate. The clock starts when that paper is issued. It does not start on the day the person died. If nobody has applied for it yet, your clock has not started.
There are two warnings here.
You can ask for more time, but the Court does not have to give it. Do not plan around getting an extension.
Once the estate has been fully handed out, it is too late. Nothing can fix that, not even the Court. So tell the person handling the estate, in writing, that you intend to apply. Once they know, they must stop handing money out until the Court decides. That one letter protects everything else.
What will it cost me?
In estate cases, legal costs are often paid out of the estate rather than out of your own pocket. The Court has ordered that in these cases more than once.
Two things about that matter.
It is a decision for the Court each time. It is not automatic and it does not always happen. A claim with no real basis can leave you paying.
Money paid out of the estate is money nobody inherits. Every dollar of legal cost is a dollar less for the family.
That is one reason these cases are usually better sorted out early, with everyone talking, than fought all the way to a hearing.
What if there was a Will?
It depends on whether the Will covered everything.
A valid Will that deals with everything
A distribution order is not available. Community law does not override a valid Will in New South Wales. That is hard to hear, and it is the position.
It you believe you should have been provided for, there is a different claim. It is called a family provision claim. On that claim the Court must take the relevant Aboriginal and Torres Strait Islander customary law into account. It has its own deadline, and it runs from the date of death rather than from the grant, do it usually expires sooner. Get advice quickly.
A Will that does not cover everything
This is more common than people think. A Will might deal with the house and say nothing about the rest. A gift might fail because the person named in it died first.
Whatever the Will does not deal with is treated as though there were no Will for that part. A distribution order reach that part, and only that part.
No Will at all
The whole estate is open. That is the situation the rest of this article describes.
Who can ask for a distribution order?
Two kinds of people can apply.
The person already handling the estate. Or anyone who says they should share in it under the laws, customs, traditions and practices of the community the person belonged to.
The second one is the wide door. It does not matter that the fixed list does not recognise you. What matters is what your community says.
You do not have to be Aboriginal or Torres Strait Islander yourself. The test is about the person who died, not about you.
What the Court needs to hear
The Court needs three things.
That the person who died was Aboriginal or Torres Strait Islander. There are three parts to this. They were descended from Aboriginal or Torres Strait Islander people. They identified that way. And a community accepted them. All three must be true. A confirmation letter from a Local Aboriginal Land Council usually helps.
Which community or group they belonged to. Customs are not the same everywhere. The Court has to know whose law it is being asked to apply.
What that community’s law says about who inherits. This normally comes from Elders, in signed statements. Elders do not need to be experts to give it. The usual rules that stop a person repeating what they were told do not apply here. Parliament made that exception on purpose, and it makes this much easier than it sounds.
One caution. The Court will not simply take your word for it. If it is not satisfied about what the custom really is, it can refuse the application. So set the rule out plainly, in the Elder’s own words, and say how they know it.
Will the Court do what my community says?
Not always. This is the part that surprises people, so it is better to hear it now.
The Court must look at your community’s laws and customs. It must also be satisfied the result is just and equitable. That means fair, taking everything into account. Those are two separate steps, and the second one can change the answer.
In practice the Court asks a simple question. If this person had been made to write a Will, what would they have written? Your community’s law carries real weight in that question. So does anyone else with a genuine claim on the person.
So the Court can give something to a person your family would have left out. In two decided cases it did exactly that. A small share went to relatives who had barely been part of the person’s life.
That is not a reason to give up. In both of those cases, the person bringing the claim still received most of the estate. It is a reason to be realistic about what an order might look like.
What a distribution order cannot reach
Some money never becomes part of the estate. A distribution order cannot touch it.
Superannuation paid straight to a partner or child, instead of into the estate
Life insurance paid to a named person
A house owned as joint tenants, which passes automatically to the other owner
Anything held in a family trust
Superannuation matters most here. In these estates it is often the biggest thing the person owned. Where it lands can decide whether there is anything left to argue about. Ask early where the super has gone.
What if the family is spread across the border?
It depends on where the person who died was legally based. It does not depend on where the community is.
Only New South Wales, Tasmania and the Northern Territory have laws like this. Queensland, Victoria, South Australia, Western Australia and the ACT do not.
If the person lived across a border, or moved around a lot, get advice before you assume this is open to you. That exact question decided one of these cases.
Keep the papers
Families clear the house fast. Phones get wiped and accounts get closed. Do this now, before anyone asks you to.
Keep texts, emails, photos and letters
Keep bank records, and any note in the person’s handwriting
Write down what you remember while it is fresh, with dates
Write down who else was there
Do not delete anything, even if it does not help you
A Will is easier than all of this
Everything above is a repair job. A Will avoids the need for it.
A Will lets you name who gets what. You choose someone from your own family or community to handle things. You can say what happens to cultural items, and what you want for your funeral. No Elder has to stand up and explain private family business to a Court.
Making a Will does not hand your culture over to the legal system. It is how you make your culture stick, in a form the law has to follow.
Free and low-cost Will services for Aboriginal and Torres Strait Islander people are available through the Aboriginal Legal Service, the Arts Law Centre of Australia and NSW Trustee and Guardian.
What to do now
Find out whether anyone has been given a grant of administration.
Write to that person and say you intend to apply. Keep a copy.
Work out which community or group the person belonged to.
Talk to two or more Elders who can explain the custom about who inherits.
Ask a Local Aboriginal Land Council or Aboriginal corporation for a confirmation letter.
Find out where the superannuation went.
Gather your papers and write down what you remember.
Get advice quickly. The 12 months runs from the grant, not from the death.
How we can help
We act for people who have been left out of estates. We advise on distribution orders, on the evidence Elders and communities are asked to give, and on Wills for Aboriginal and Torres Strait Islander clients.
The first conversation is free. Call us before the 12 months runs out. If you are not sure whether the clock has started, that is a good reason to call rather than wait.
If you are the executor or the administrator, your duties are different from anything described here. Read Handling an Indigenous Estate in NSW instead.
Disclaimer
This article is general information about the law of New South Wales as at 19 August 2026. It is not legal advice, and reading it does not create a solicitor and client relationship with Dormer Stanhope. It does not take your circumstances into account, and the law in other States and Territories differs. The law also changes. If an Aboriginal or Torres Strait Islander person close to you has died without a Will, speak to a solicitor about your own position.
