Indigenous customary law overrides intestacy law in NSW

Transcript

A will is a legal document that sets out who you want to leave your assets when you die.

A person dies “intestate” if they die without leaving a valid will.

Reports from the NSW Trustee & Guardian are that 45% of Australians do not have a valid will.

If you die without a will your estate will be distributed according to a pre-determined formula and, if your only living relatives are more distant than blood cousins, your estate will pass to the government.

Generally, if a person dies intestate then the people entitled to the estate are (in order of priority): the spouse and children, parents, grandparents, siblings, blood aunts and uncles, blood first cousins, and finally (if there is no one in the earlier categories) the New South Wales government.

There is, however, one exception to the above if the deceased person is an indigenous Australian. The Succession Act 2006 permits under section 133:

• a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged, to apply to the Supreme Court for an order for distribution of the intestate estate.

Ordinarily, if a deceased person dies without blood relatives extending beyond cousins, their estate would all pass to the state government, to go into consolidated revenue. However, in the same circumstances, if an indigenous person dies without blood relatives extending beyond cousins, their estate may be distributed under the laws, customs, traditions and practices of the indigenous person’s community or group.

This was applied in the Estate of Mark Edward Tighe [2018] NSWSC 163, when the late Mr Tighe, a Kamilaroi man, died intestate at Quirindi on 15 February 2015. He was not survived by anyone who would normally benefit under the laws of intestacy – so his estate would ordinarily be paid to the NSW statement government.

The applicant, Mr Campbell, also a Kamilaroi man, had been cared for by, and lived with, Mr Tighe’s family, and latterly Mr Tighe, for most of Mr Campbell’s life. As far as Mr Tighe, Mr Campbell, and their Kamilaroi community were concerned, Mr Tighe and Mr Campbell were brothers.

Under this kinship relationship, Mr Campbell applied under Part 4.4 of the Succession Act to receive Mr Tighe’s intestate estate. Evidence was provided by the Kamilaroi elders which established that under Kamilaroi laws, customs, traditions and practices, it would be expected that Mr Campbell, as Mr Tighe’s kinship brother, would succeed to the estate in the absence of any other family. Reasonable notice having been given, and with no other person having advanced a claim, the Court awarded Mr Tighe’s estate to Mr Campbell.

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