Distributing an indigenous intestacy: What’s the difference?

Whilst most were enjoying a Christmas vacation, a judge of the Supreme Court was grappling with legislation “full of conundrums” on “an elusive concept of Indigenous “customary law” and identification of an Indigenous “community or group””[1]. All of this to find the rightful beneficiaries of the indigenous person’s intestate estate.

The deceased

Robert James Clark was born on 17 August 1956. His mother was Eunice Clark who was then aged 18 years and unmarried. The identity of the deceased’s birth father was not known. The child was subsequently adopted[2] by Joyce and Stanley Wilson and his name was changed to Howard Stanley Wilson. He was the only child of their marriage. Following the separation of his adoptive parents, he remained in the custody of his adoptive mother. She died in 1980. He had little contact with his adoptive father, who died in 1987.

Before her death in 1989, Eunice Clark married and had three more children. These were the plaintiffs[3]. They actively searched for and, in 1993, found Wilson. He actively engaged with them. The judge observed that “[s]ocially, as well as biologically, the plaintiffs became his nearest family”[4].

Stanley Wilson married a second time. This produced two children, the defendants. Howard Wilson ceased to have any contact with any member of his adoptive family in about 1982, when he was aged about 26 years. He died in 2013. He had never married. He died without a de facto partner, without issue and without dependants. Both parents predeceased him. His estate comprised $58,000. He had $97,000 in superannuation funds. There were no known liabilities. There was no will or document which could constitute an informal will.

There was no person who was known to fit the description of an “eligible person”[5] to make an application for a family provision order in relation to Wilson’s estate. The only persons who might reasonably be thought likely to have a sustainable claim on his estate were the parties to the proceedings.

The proceedings

The plaintiffs contended that the whole of the deceased’s estate be distributed to them. However, by virtue of s109 of the Succession Act, the deceased was “to be regarded, for the purposes of distribution on an intestacy, as a child of the adoptive parent or parents and:

(a) the child’s family relationships are to be determined accordingly, and

(b) family relationships that exist as a matter of biological fact, and are not consistent with the relationship created by adoption, are to be ignored.

So, a distribution in accordance with the standard intestacy principles set out in the Succession Act meant that the defendants[6] were entitled to the whole of his estate in equal shares[7]. The plaintiffs sought to alter that inheritance and relied on a part of the Succession Act specifically addressed to an indigenous person’s intestacy.

This part of the Act was considered by the judge in the context of the Act as a whole. Having done so, he concluded that “an idea that informs [the legislation relating to the distribution of an intestate’s estate was] provision for dependants, recognition of just or moral claims on an intestate, and provision for an organisation or person for whom an intestate might reasonably be expected to have made provision”[8].

Indigenous person

Applying this to the part of the Act relating to an “indigenous person” required identification of someone fitting that description. The judge examined the definition and concluded that it required Aboriginal or Torres Strait Islander descent, identification of the person as an Aboriginal person or Torres Strait Islander, and acceptance of the person as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community[9].

The evidence was that Eunice Clark was of Aboriginal descent, hailing from the “the Gunditjmara nation” in western Victoria. The deceased, at least after being “reunited” with the plaintiffs, identified as an Aboriginal person. From at least that time, he was accepted by them as an Aboriginal person. They maintained a connection with the Gunditjmara nation. All lived openly as members of the Sydney Aboriginal community. The judge concluded that the “deceased satisfied all the elements of the definition of “Indigenous person”[10].

Laws, customs, traditions and practices

A person claiming to be entitled to share in the intestate estate of an indigenous person pursuant to the “laws, customs, traditions and practices” could make application for a distribution of that estate. The court noted that “laws” and the like was not defined in the Succession Act – the judge thought deliberately - and wasn’t found in other NSW legislation that made reference to Indigenous factors. Other sections of the Succession Act referred to “customary law”. The language wasn’t found in relevant Commonwealth legislation. In addition, the expression “laws, customs, traditions and practices” was not found in the formal recommendation of the NSW Law Reform Commission which led to enactment of the Part. It was only found in a draft South Australian Intestacy Bill 2007 appended to the Report as model legislation[11].

Lindsay J observed that “The expression “laws, customs, traditions and practices” is an unhappy one to use as a focal point in legislation such as [the intestacy part] of the Succession Act because it invites uncertainty mired in obscure formality…[the intestacy part] is not limited in its focus to land or systems of land title governing a particular community. Its focus is on succession to individual property rights, across the full range of property types, in fluid communities empowered by, but not tied to, a traditional heritage”[12]. Ultimately, to give it meaning in the Act, the expression was held to “invoke an understanding of community, and represent an endeavour to encapsulate in legal phraseology social, economic and religious bonds that define, reflect and bind a community of Indigenous people”[13].

Scheme for distribution

Next the judge referred to the need for “a scheme for distribution”. In essence, this involved a definite proposal for administration of the whole estate of the intestate, so far as it passes on intestacy”[14]. It is apparent from the judge’s further contents that the contents of the “scheme” may be satisfied informally. Also, the scheme didn’t need to be accepted or rejected in whole; the judge observed that “[i]n discharge of its judicial function, the Court is not bound simply to accept, or reject, a scheme proposed by a party. The Court’s duty is to give such judgment or make such orders as the nature of the case may require”[15].

Just and equitable

The principal direction to (and constraint upon) the Court in exercise of the jurisdiction conferred by the relevant part of the Act was that “The Court may not make an order under [the intestacy part of the Act applying to an indigenous person] unless satisfied that the terms of the order are, in all the circumstances, just and equitable”[16]. The judge observed that a sustained pattern of social engagement over a prolonged period, coupled with a corresponding social disengagement, held the key to what is just and equitable.

Outcome

The judge identified the “ultimate question” in the proceedings as:

Had the deceased (a person without dependants) 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?[17]

In answering that question, the judge went through this process:

• the deceased was born; adopted; raised in a broken family by an adoptive mother; known only briefly, and in passing, by adoptive half-sisters; and actively located, and lovingly embraced, by his Aboriginal half-sisters and their respective families.
• the plaintiffs had the status of ‘closest family members’ whether “family” is defined by blood line, cultural affinity or social interaction.
• it is in accordance with the laws, customs, traditions and practices of the deceased’s Indigenous community that, as his closest family, they be favoured in distribution of his estate.
• “[t]here is no foundation in the evidence for a finding that the deceased refrained from making a will with the deliberate intention that his intestate estate be distributed according to the general rules on intestacy[18].

The judge observed that the strong probability was that, if prevailed upon to make a will, the deceased would have provided for substantially the whole of his estate to pass to the plaintiffs but said: “I do not exclude the possibility that the deceased would have thought fit to make some small provision for the defendants in recognition of their shared (albeit distant) experience of family life and (albeit through the blood line of his adoptive father, not his adoptive mother, to whom he was closest) in recognition of their family relationship with him”[19].

The judge made an order with “nominal provision for the defendants in recognition of their relationship with the deceased… the appropriate quantum of provision to be made for each of the defendants is $4,000, representing a charge of $8,000 in total on the estate”. The balance of the estate was shared among the plaintiffs equally.

A need for reform

Apart from reviewing the general condundrum in the legislation and the “uncertainty mired in obscure formality” of the concept meant to be captured in “laws, customs, traditions and practices”, the judge made comments which point to a more fundamental reform of intestacy laws. The judge made comments pointing to the similarity, rather than any differences, between indigenous and non-indigenous intestacy distribution: “The ability of the facts to attract the operation of [the indigenous intestacy provisions] derives, not from an Indigenous departure from general community thinking, but (courtesy of the substitutional character of an adoption) a departure of the general scheme for distribution located in [the standard intestacy provisions] from a general, perhaps universal understanding of “family””[20]. He remarked that “These ideas are adaptable to Indigenous estates no less than to non-Indigenous ones”[21].

These observations lead the judge to conclude with this suggestion[22]:

In due course, consideration might usefully be given by Parliament to an extension of [the indigenous intestacy provisions] to the general population. This could be done by: (a) an adaptation of the second and third elements of the definition of “Indigenous person”…requiring a community connection between a claimant and the deceased; and (b) conferral on the Court of a discretionary power to vary the general rules of intestacy, informed by criteria similar to those found in [the indigenous intestacy provisions] constrained by a just and equitable criterion.

Alternatively, a dispensing power might be conferred on the Court, generally, in terms similar to the power conferred on the Minister by [the section applicable to circumstances where there is no beneficiary to an intestate estate].

Darryl Browne[23]

[1] Re Estate Wilson, Deceased [2017] NSWSC 1 (18 January 2017, Lindsay J, [4].

[2] Apparently, an Aboriginal woman who was single and pregnant at this time, typically either had their child removed by welfare or agreed to adoption: [54]. The judge added that “The same fate can reasonably be supposed to have awaited a single mother of non-Aboriginal descent at that time”: [64].

[3] The plaintiffs were Jill Bott, Michelle Gardner and Susan Donova.

[4] 2017] NSWSC 1, [29].

[5] Succession Act, s57(1).

[6] By reason of the deceased’s adoption, the defendants, Collette Phillips and Leanne Dunn, shared the same father as the deceased: s109 of the Act.

[7] This was the result of s129 of the Act.

[8] Ibid at [130].

[9] Ibid at [137(a)]. In this regard the judge agreed with the observations in Shaw v Wolf (1998) 83 FCR 113 at 117-122.

[10] Ibid at [45].

[11] The South Australian Bill was never enacted. Part 4 (sections 34-36) of the Tasmanian Intestacy Act 2010 is in substantially the same terms as Part 4.4 of the NSW Act save that it uses the “just” rather than the “just and equitable” criterion to which reference is made below.

[12] [2017] NSWSC 1, [15].

[13] Ibid at [141].

[14] Ibid at [160].

[15] Ibid at [147] citing Civil Procedure Act 2005 NSW, s90; Uniform Civil Procedure Rules 2005 NSW, r36.1; Civil Procedure Act 2005, s86.

[16] Ibid at [135].

[17] Ibid at [173].

[18] Ibid at [180].

[19] Ibid at [182].

[20] Ibid at [59]. See also [104].

[21] Ibid at [16].

[22] Ibid at [189] – [191].

[23] Darryl Browne is the principal of BROWNE. Linkenbagh Legal Services. He is an Accredited Specialist in Wills and Estates. He is the Chair of the Law Society’s Ethics Committee. He has been a member (2010- 2014, 2016), Chair (2014) and Deputy Chair (2016) of the Elder Law and Succession Committee. He is a Councillor of the Law Society, a member of the Specialist Accreditation Board and the Society’s Property Law Committee, Criminal Law Committee, Disclosure Committee and Fidelity Fund Management Committee and  the Working Group on Elder Abuse. He is a member of the Law Council of Australia’s Elder Law and Succession Committee and its Working Group on Elder Abuse. He is a member of the Legal Aid Commission Board and the University of Sydney’s Law Extension Committee. He writes bi-monthly Case Notes on wills and estates for LSJ and occasional other articles for that and other journals. He facilitates the Law Society’s online Wills and Probate Procedures for Solicitors. He designed and presents the Masterclass on Powers of Attorney. He is a member of STEP and SMSF Association. The opinions expressed in this article are his own.