Indigenous Intestacy

The recent establishment of compulsory superannuation that often includes insurance entitlements has lead to young adults often having significant assets if they were to die unexpectedly that may not be readily accessible by a beneficiary without a grant of representation by the Court.

Recently the Court was asked to consider competing claims on the estate of a deceased Indigenous person made by his parents within the deceased’s Indigenous community.

Part 4.4 of the Succession Act 2006  enables dependents, any persons who have a just or moral claim on the intestate,a just and equitable distribution of the 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 provisionincluding any organisation (such as a charity, where the intestate did volunteer work or made regular donations).

Gerard Jerrard died in July 2016, aged 22 years in a motor vehicle accident. Gerard died intestate with no partner or children; therefore his estate is to be divided equally between his parents Nicole and Gerard (Snr).

The assets of the estate comprised death benefit and superannuation entitlements  associated with Gerard’s employment with Inverell Shire Council most of which cannot be accessed without a grant of administration by the Court.

Nicole and Gerard (Snr) were never married and were not in a de facto (marriage-like) relationship. They were members of an Aboriginal community with Nicole raising her son as a single parent. Gerard (Snr) had three other children. All lived as members of the Nucoorilma Clan of the Gomeroi People.

Gerard’s testamentary intentions were not known and there was no direct evidence as to why he died without making a will. Similarly there is no direct evidence whether he would, or would not, have been content to abide by the general intestacy rules, or “traditional customary lore”. However the court accepted that due to his age, social circumstances, and the unforseen manner of his death that he never addressed these questions.

Part 4.4 of the Act provides that the Court must take into account “the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged”.

Nicole argued that under “the traditional customary lore” of the Nucoorilma Clan of the Gomeroi People from Tingha, near Inverell in northern NSW the next of kin of a deceased person who dies without children, and without a spouse, is the person who has borne responsibility for, cared for, and provided for the deceased person throughout his or her life. Therefore as the mother and primary carer of her son, she is entitled to the whole of his estate to the exclusion of his father.

Gerard Snr argued that there are no relevant laws, customs, traditions and practices of the Nucoorilma Clan of the Gomeroi People bearing upon who should inherit the estate.

Nicole believed that had Gerard been required to make a will, he would have left the whole of his estate to her. As a single mother Nicole bore the burden of raising Gerard, with the benefit of help from other family members, in a cohesive Indigenous community. Equally, to that extent, Gerard Snr was relieved of the burden he would have borne had mother, father and son lived as a distinct family unit within the community.

Conversely Gerard Snr believed that if his son had been required to make a will, he would have divided his estate equally between his parents and that it would not be just or equitable to do otherwise on the making of a distribution order.

The Court held that Gerard had a relationship with his father who he respected and for the following reasons, decided against exclusion of the Gerard Snr from participation in the deceased’s estate:

• Gerard Snr continued to give Gerard birthday and Christmas presents.
• When in need Gerard Snr sought, and obtained, assistance from the Gerard.
• When Gerard Snr was hospitalised Gerard, somewhat reluctantly, visited his father to pay familial respect due to a parent.
• Gerard maintained good relations with his paternal grandmother and his paternal half siblings, thereby indirectly maintaining his connection with his father as part of the community to which everybody belonged.
• Gerard Snr was consistently proud of his son, whose loss he continues to mourn.

Having regard to the size and nature of the deceased’s estate, traditional customary lore in the Indigenous community to which everybody belonged, the nature and strength of the personal bonds between Gerard and his parents, and their family history, the Court believed a distribution order in favour of Nicole would be just and equitable only if, a modest, but not insignificant, allowance is made in favour of Gerard Snr as a contribution to his welfare.

The Court ordered that allowance should be fixed at $40,000.