Indigenous Intestacy in NSW

Mark Tighe died intestate in February 2015. An Aboriginal of the Kamilaroi nation, his only significant asset was his superannuation.

As we have posted before if the intestate does not have a spouse/s or issue then the Estate is distributed firstly to parents, then siblings, grandparents, aunts and uncles, then first cousins, if these have been exhausted the government has a right to the intestate’s estate.

Mark was not survived by any person entitled to his intestate estate under the Succession Act 2006 (NSW) (“the Act”). However there is provision under the Act enabling dependents, any persons who have a just or moral claim on the intestate, and any organisation (such as a charity, where the intestate did volunteer work or made regular donations) or person who believes that the intestate might reasonably have made provision for.

It is a means for effecting a just and equitable distribution of the intestate estate of an Indigenous person who (having lived in community) died in community, leaving dependants; persons who have a just or moral claim on the estate; or others for whom the intestate might reasonably be expected to have made provision.

Ultimate the Court must ascertain that if Mark had been required to make a will disposing of his estate, what are the terms of the will he would have made having regard to the interests of any person who had a just or moral claim on him, and the interests of those for whom he might reasonably be expected to have made provision, paying due regard, in all the circumstances, to what would be just and equitable?

Kori Campbell is a member of the Kamilaroi nation, who had been cared for by, and lived with, Mark and Mark’s family for most of his life. The men and the Kamilaroi community considered that Mark and Kori were brothers.

Relying on that “kinship” relationship, Kori sought letters of administration for the intestate estate and applied under the indigenous persons’ estates provisions of the Act to be paid the entirety of Mark’s intestate estate (the “Estate”). Allowing the estate to be administered in a culturally appropriate way.

Elders of the Kamilaroi nation gave evidence that under Kamilaroi laws, customs, traditions and practices, it would be expected that Kori, as Mark’s kinship brother, would succeed to the Estate in the absence of any other family.

Whilst there is a reluctance to make Wills throughout the population there is a greater reluctance amongst Indigenous Australians. Importantly family relationships of Indigenous Australians are culturally different from those of non-Indigenous people. Non-Indigenous relationships are still generally regarded as having at their core some variant of the concept of a “nuclear family”, focussed on linear relationships. Family relationships of Indigenous Australians are generally thought to have a tendency toward a communal setting and include a willingness to recognise kinship without the benefit of a blood relationship.

As no other person had made a claim on Mark’s Estate the Court accepted that as Kori had been nominated by Mark as the beneficiary of his retirement savings account the Court was satisfied that administration should be granted and the estate be distributed the estate as it is just and equitable in the circumstances.

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