Australian Succession law is not always culturally appropriate to Aboriginal & Torres Strait Islanders, as it fails to recognise the impact that different kinship patterns have. Similarly the passing of material goods, burials, guardianship of children and the importance that passing customary secret laws has within the Aboriginal & Torres Strait Islander communities are not adequately addressed by the intestacy laws currently operating in most Australian jurisdictions.
In the wider community 45% of Australians have a valid Will yet the majority of Indigenous Australians die intestate. However not all states have legislation dealing with customary inheritance practices of Aboriginal & Torres Strait Island intestate estates. Non indigenous kinship takes a linear focus on blood lines whereas most (but not all) Aboriginal & Torres Strait Islanders view kinship as circular with property going to close members of the kinship group.
Generally speaking intestacy legislation in Australia recognises a limited range of relatives. Similarly family provision regimes are equally limited to firstly spouse and children with some jurisdictions allowing those who have been dependent on the deceased eligiblity to apply.
There are a number of reasons given as to why the number of Aboriginal & Torres Strait Islanders making Wills is low. Reports suggest that a misconception amongst Aboriginal & Torres Strait Islanders that they have insufficient property to make a Will, and that by not making a Will their debts won’t have to be paid by the next of kin. Uncertainty about superannuation entitlements on death, also contributes to an unwillingness to make a Will.
There are also issues about disputes arising as a result of making a Will, including where a Will should be kept and what happens if it is lost. In making a Will and appointing an executor, making sure that the family know that person has been entrusted by the Will maker to make decisions regarding the estate many of these problems can be addressed.
As with the wider community an increase in Aboriginal & Torres Strait Islanders making Wills needs to be promoted. Drafting wills that include the use of testamentary trusts to protect customary law obligations, including secret and half-secret trusts (where either the existence or the substance of the trust is undisclosed in the will, but is known to the trustee), will ensure that customary law obligations are recognised and given legal force.