Indigenous Intestacy & Burial

Sydney Hoskins was an Aboriginal man who died intestate with no substantial assets on 27 April 2003 aged 30.

Sydney’s parents had separated when he was young. After the separation Sydney had lived with his mother and her extended family in Gippsland, Victoria. His father would visit them each school holidays and periodically would take them back to Wallaga Lake just north of Bermagui, on the south coast of New South Wales.

Sydney’s mother died when he was a teenager and he moved back to Wallaga Lake and lived with his father with whom he had a close relationship until the father’s death when Sydney was about 19 years old.

Sydney had fathered two children during a five-year relationship with an Aboriginal woman, Sonia Dow. Due to Sydney’s problems with alcohol there were difficulties in the relationship. When Sydney died he was not living with Sonia, but they were taking steps toward repairing their relationship.

Sonia asked the Courts assistance so that her wishes as Sydney’s domestic partner that she could bury Sydney in a place near where his mother was buried, and where she and the children could visit the grave.

Sydney’s siblings sought similar directions and argued that it was required by Aboriginal culture that the deceased be buried in his father’s country at Wallaga Lake, where the Sydney returned twice a year for men’s business even when he was not living in the area.

The Court commented that the majority of Aboriginal people in Australia die intestate and the legislation as to who takes the benefit where there is no Will are based on a non-Aboriginal view of family and kinship… creating a serious mismatch between the legislative scheme and Aboriginal cultural expectations.

The Court decided notwithstanding the cultural factors plead by Sydney’s siblings, Sonia was Sydney’s domestic partner as they intended to reconcile, meaning that it was highly probable that she would be appointed administrator of the intestate estate if she had applied. Similarly as the mother of two of Sydney’s children, Sonia should be allowed to arrange for his burial.

If Sydney had drafted a Will naming an executor he could have saved his family from this litigation. As the executor has the right of burial; and is not legally bound to consult with other stakeholders then they are free to bury the deceased wherever they like.

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