Indigenous customary law overrides intestacy law in NSW
A Will is a legal document that sets out how you want your assets to be distributed after you die. If you don’t leave a will, you’re deemed to be intestate, meaning “no will”.
Reports from the Trustee and Guardian of New South Wales are that they are approximately 45% of Australians don’t have a will, meaning that when they die their estates will be intestate. So what happens then? Well, their estates are distributed in accordance with a predetermined formula, that’s set out in the Succession Act, and it goes down various categories of person related by either legal relationships, such as marriage and blood relative. Those categories are spouse and children, parents, grandparents, siblings, blood aunts and uncles, first cousins.
Beyond that relationship it goes to the state government. So ordinarily if someone dies and if they don’t have those categories of persons related to them at their death, their entire estate goes to the state government. However, there is an exception in the Succession Act for indigenous Australians.
Section 133 of the Succession Act states that if an indigenous Australian dies intestate in New South Wales, a claim may be brought on on their estate for distribution under the laws and practices of their community or the group to which they are a member.
This was applied recently in a case of the estate of Mark Tighe.
Mr Tighe died in February 2015. He died without any persons related to him before first cousins.
In that scenario his estate would ordinarily have passed to the state government, however, under section 133 of the Succession Act, a claim was brought by Mr Campbell. Mr. Campbell was also a Kamilaroi man, who had grown up with Mr Tighe as a member of his family, and evidence was brought by elders of the Kamilaroi community that for all intents, under their kinship laws, Mr Campbell was Mr Tighe’s brother.
Notice was published there were no competing claims and under Part 4.4 of the Succession Act the court made an order that Mr Campbell receive Mr Tighe’s entire estate, which but for this law his entire estate would have passed to the state government.