Aboriginal Australia & Intestacy

Indigenous Australia with a diverse spread of people from rural, urban, traditional and historical communities is not a homogenous entity. Which makes it difficult to formulate a general scheme that would be suitable to apply with regard to intestacy throughout all Indigenous communities in Australia.

Generally in Australia, the distribution of property on intestacy is based on family relationships based on lineal, bloodline relationships that have been transferred through English law and society. As such general intestacy rules may be inappropriate to members of Indigenous communities, who may have a broader concept of family relationships including to people who are not blood relations who are owed important obligations under customary law. This can apply regardless of whether the Aboriginal people live a traditional lifestyle.

Aboriginal customary law may recognise kinship without blood relationship, including adoption and by marriage. Aboriginal relationships such as mother, brother, sister and so on, may not necessarily be the same as those relationships in western society, and should be reflected in legislation and be interpreted more broadly than they would be at common law.

It has been found that it is common for Indigenous people to die intestate. There are a number of suggestions as to why this is the case, including literacy, mobility, and in some cases cultural attitudes towards death where people are unwilling to record their succession plans in a Will.

Currently a number of jurisdictions make intestacy provisions for Indigenous people. Generally speaking these fall into two categories. Firstly there are those that extend the definition of spouse under general intestacy rules to include customary marriage. Secondly, there are three jurisdictions that, depending on the circumstances, provide for a separate or additional distribution regime for Indigenous people.

In New Zealand property other than Maori freehold land devolves according to the legislated general rules of intestacy. Where the owner of any beneficial interest in Maori freehold land dies intestate, that interest devolves via rules that follow a lineal chain of title from the deceased. Interestingly if the intestate leaves a surviving spouse, generally that spouse is entitled to a life interest, or an interest until remarriage, in the intestate’s land.

Australian parliaments should be more active in promoting the benefits of Wills for all Australians. It is particularly concerning where Indigenous concepts of family in customary law often contradict the general law relating to intestacy. It is, therefore, not always appropriate, for the general law to apply without qualification in cases where an Indigenous person dies intestate.

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