Aboriginal Intestacy

I thought that as it is Australia day tomorrow I would revisit the difficulty with Aboriginal Australians and Intestacy. The Majority of Indigenous Australians die without making a Will.

If an Indigenous Australian dies without making a Wil it can lead to burial disputes, property disputes, guardianship problems regarding young children and issues regarding customary law.

States with the higher Indigenous populations have specific inheritance regimes however only the NT can be considered successful in dealing with customary law inheritance issues.

Intestacy rules as outlined by succession legislation fail to recognise different kinship patterns, their impact in inheritance law and to recognise the importance of custodial property.

There are three main problems with intestacy for Aboriginal people. First, kinship ideas in the intestacy legislation may mean the wrong person could inherit. Second, it can make it more difficult to settle burial disputes. Third, it cannot deal with complicated customary law issues.

Unfortunately a very common problem with Aboriginal intestacy has been the development of disputes, about where the body is to be buried or otherwise disposed of. If a Will had been made the executor could decide this issue without the need for protracted court action.

Intestacy laws in every State places a strict order in which the assets are required to be distributed (spouse and de facto partners first, then children, parents, brothers and sisters, grandparents, aunts and uncles) it is usually not in accordance with the Aboriginal views as to it may not properly account for Aboriginal kinships structures.

There is a concern about the loss of secret knowledge and the possible use of secret and half-secret trusts as a means of saving the knowledge from extinction. However, this should be seen as a backup only, to be used where all ordinary ways of passing on the customary knowledge or objects had been exhausted.


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