Wills, Intestacy & Aboriginal and Torres Strait Islander Peoples

This Week is National Reconciliation Week in Australia. It celebrates and builds on the respectful relationships shared by Aboriginal and Torres Strait Islander people and other Australians. We have posted before about the issues with intestacy in indigenous communities. Intestacy rules are based on a western notion of linear kinship, which places the emphasis on blood ties.

An intestate’s property passes firstly to their spouse, children and grandchildren (if they have them), and only if there are no such people does it go to parents and other relatives- importantly first cousins are the most remote relatives who can take under these rules.

Aboriginal people have a broader view of kinship where in some situations people regarded by western notions of kinship as nieces and nephews of X are seen as  X’s children because they are the children of Y who is X’s same-sex sibling. Although an Aboriginal person may live an urban middle-class lifestyle, they may still adhere to traditional ideas and obligations of kinship.

Therefore although intestacy provisions have been modified to allow Aboriginal and Torres Strait Islander people to put in place special plans for the purposes of intestacy, there are still issues with the wrong person taking a benefit under intestacy, and in settling burial disputes, which leave many complicated customary law issues unresolved.

Burial disputes are common in the Aboriginal and Torres Strait Islander community, although a direction in a will to deal with a body a certain way is not binding (with the exception of a direction not to cremate a body) an executor has the duty of disposal of the body. A Will maker can therefore appoint an executor who is willing to carry out their wishes. Similarly intestacy cannot deal adequately with all customary law obligations.

Where the person dies intestate, particularly where the estate is very small there may not be any application for letters of administration. If administration of the estate is granted it is not clear that administrators have the same rights in relation to the body as executors do therefore dealing with the burial may not be resolved without court action.

Aboriginal and Torres Strait Islander peoples artwork is often a significant issue for Wills to deal with; as an example a person may have created an artwork based on ritual knowledge. Copyright protects the expression of an idea rather than the idea itself; copyright in the artwork is recognized under common law and can therefore be assigned to other people. However dealing with the ritual knowledge can cause problems. Is it something the artist is supposed to pass on?

A carefully drafted wills can operate to ensure that customary law obligations are recognised by the common law. Wills can deal precisely with a range of property and obligations. They can deal with property, and custodianship of property by creating trusts. Importantly once admitted to probate Wills operate as evidentiary material for future claims.