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Indigenous Law Bulletin

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Vines, Prue --- "Wills as Shields and Spears: the Failure of Intestacy Law and the Need for Wills for Customary Law Purposes in Australia" [2001] IndigLawB 80; (2001) 5(13) Indigenous Law Bulletin 16

Wills as Shields and Spears: the Failure of Intestacy Law and the Need for Wills for Customary Law Purposes in Australia[1]

by Prue Vines

The majority of Aboriginal people in Australia die intestate—that is, without leaving a valid will. All Australian jurisdictions have legislation which determines who will take a benefit if there is no will (‘intestacy legislation’). [2] However, the statutory regimes for intestacy are all based on a non-Aboriginal view of family and kinship. This creates a serious mismatch between the legislative scheme and Aboriginal cultural expectations. In the absence of improved legislation or otherwise, it is suggested that a better way of meeting those cultural expectations is to use wills, which can then operate as ‘shields’ (preventing other people and laws from interfering with cultural obligations and expectations) and as ‘spears’ (setting up the kind of regime which is culturally appropriate).

Current Intestacy Regimes

The general scheme of intestacy legislation in Australia gives primacy to the spouse (one spouse only including de facto and, in some places, homosexual partner) and children (lineal descendants) of the deceased. Quite a limited range of relatives is recognised. In New South Wales, for example, first cousins of the deceased are excluded from taking a benefit on intestacy. In Queensland first cousins are the most remote relatives who can take a benefit.

All jurisdictions also have family provision regimes which provide for a select group of people to challenge the will or intestacy on the basis of inadequate provision.[3] The people entitled to challenge are firstly spouse and children. In some jurisdictions people who have been dependent on the deceased may also apply, but again, the class of possible applicants is quite limited.

Definitions of Family

Both the intestacy and family provision regimes rely on a view of family which does not match Aboriginal views of family. Non-Aboriginal views have a number of characteristics:

By contrast, Aboriginal views of family differ in many respects. Not all Aboriginal kinship patterns are the same, but some emphases are shared. These include:

It is important to recognise that the differences between Aboriginal and non-Aboriginal views are not just differences about the extent of kinship, or how close extended family is considered. There are significant conceptual differences which impact on the view of family. The extreme emphasis on lineal, bloodline relationships in the common law contrasts with the acceptance of collateral, adopted and maritally linked relatives in Aboriginal customary law. Added to this is a level of complexity in the naming of Aboriginal relationships which is connected to specified obligations which continue to exist whether one is living a traditional or non-traditional lifestyle. Ideas of family do not change just because one moves to Sydney or Brisbane or Perth.

Attempts to Deal with Aboriginal Issues in Intestacy

The extensive nature and complexity of the family in Aboriginal culture and the fact that kinship often dictates obligations creates a situation where the ordinary intestacy regimes in Australian jurisdictions are manifestly inadequate for Aboriginal people.

Some Australian jurisdictions have recognised this, with limited success. Queensland provides an intestacy regime for Aboriginal people and Torres Strait Islanders which gives the power to decide who is entitled to succeed to the estate of an intestate Aboriginal person to the Under-Secretary of the Department for Community Services.[5] If no-one can be found to succeed, the estate vests in the Chief Executive who is to use the money for the benefit of Aborigines generally. This pays no account to customary law at all.

Western Australia provides for the estate of an intestate person of Aboriginal descent (defined as a person of more than one-fourth of the full blood,[6] who has not been married in accordance with the Marriage Act 1961 (Cth)[7] (‘a Marriage Act marriage’)) to vest in the Public Trustee[8] who determines which relatives should take a benefit under the normal Western Australian intestacy regime. If no person can be found to take a benefit under the normal regime, then the Public Trustee is to distribute it to the persons named in reg 9. Pursuant to s 35 of the Aboriginal Affairs Planning Authority Act 1972 (WA), reg 9 is supposed to provide for distribution according to customary law. However, reg 9 does not take customary law into account beyond accepting ‘tribal marriage’.[9] If no children, spouse or parents of the deceased survive (an even more limited class of relatives than that under the usual intestacy regime), the estate is to be held in trust for the benefit of Aboriginal people in general. The Public Trustee is entitled to a fee for this service. The real effect of this regime and that of Queensland is to remove control over intestate property from Aboriginal next-of-kin to government officials.

The Northern Territory has made a more effective effort to recognise customary law in the area of intestacy. The Administration and Probate Act, Div 4A, Intestate Aboriginals, provides that an application can be made by relatives or the Public Trustee for an order for distribution. This can be accompanied by a plan of distribution according to customary law. The court must take into account the traditions of the community or group to which the deceased person belonged. This is a significant improvement on the other jurisdictions, but is flawed by the fact that it only applies to an Aboriginal person who has not entered into a Marriage Act marriage. This requirement, which also exists in Western Australia, is based on the idea that people who live traditional lives did not go through such a marriage. But a Marriage Act marriage is one of the few things that Aborigines living on reserves run by missions did have performed in a non-Aboriginal manner. It also assumes that Aboriginal people are either traditional or non-traditional, while the evidence is that a large number of Aboriginal people live lives of migration in and out of traditional and urban lifestyles.

Aboriginal Inheritance Needs

There is a convenient myth current in non-Aboriginal society that Aboriginal people are not concerned about property and therefore about inheritance. There are at least two things wrong with this idea. One is that it ignores the fact that Aboriginal people need property in order to live their lives which move in and out of urban non-Aboriginal society. The other is that it assumes that property and inheritance are only about property as a commodity. The knowledge that the relationship between Aboriginal people and land is different from that of non-Aborigines has at times been translated into the view that ownership does not matter to Aboriginal people. This profoundly misunderstands Aboriginal views of obligations and tradition. The non-Aboriginal view of ownership in the common law is a highly secular view. The usable nature of land was paramount—land was seen as a commodity, and the ownership of land was commodifiable. By contrast Aboriginal ownership of land is custodial. In Milirrpum v Nabalco, Justice Blackburn recognised custodial ownership while feeling unable to protect it.[10] Mabo held that it could be protected and recognised by common law.[11]

For Aboriginal peoples’ inheritance needs it is essential to recognise both the commodity and the custodial aspects of property. The custodial aspect is not addressed in any of the intestacy legislation, whether it pays lip-service to customary law or otherwise.

Inheriting native title land is normally unproblematic unless the entire clan has died, and in that case it will revert to the Crown. However, a considerable portion of land is owned by Aborigines—either bought using Land Funds[12] or in some other way[13]—so land may still be an issue of inheritance. Land ownership in fee simple in a country town or city may well arise during the period of an Aboriginal person’s life when they are pursuing an urban lifestyle.

The inheritance of intellectual property including ritual knowledge and artwork may well be a matter of customary law because the artwork may be derived from community knowledge or ritual.[14] Passing on obligations relating to ritual knowledge is an important custodial property issue. Passing on royalties and copyright is also a common inheritance issue for Aboriginal people. Obligations to care for children or other members of the community also need to be addressed.

Recognising Customary Law in nheritance

Recognising customary law in inheritance is obviously important. The first step in legislation should be to extend the kinship group entitled on intestacy to one matching customary law patterns. If the requirement not to have been in a Marriage Act marriage is removed, the Northern Territory model is the best one on offer because it allows for the recognition of different patterns of customary law amongst different groups. Similarly, eligible applicants for family provision should be extended where the deceased is Aboriginal.

Intestacy legislation is important in this context because it operates automatically. Thus it offers a right rather than a mere expectation that has to be argued in court. This is its advantage over family provision legislation which only gives mere expectations which one must go to court to have vindicated. Its disadvantage is that it may not be precise enough to deal with specific types of property and with both custodial and commodity aspects of property.

Wills as Shields and Spears

Another way to address this issue is to increase will-making in the Aboriginal community. Drafting wills to protect customary law obligations and general property rights for Aboriginal people might call for a considered use of testamentary trusts (trusts created by wills) including secret and half-secret trusts (where either the existence or the substance of the trust is undisclosed in the will, but is known to the trustee), discretionary trusts (giving power of decision-making to the trustee) and life estates (gifts for the lifetime of a person). Guardianship and control of children are also important—although the enforceability of testamentary guardianship is ultimately up to the court rather than the testator, a will is still the most effective way of protecting children after the death of parents. All these constructs are ways of protecting information or people, and are far easier to protect if they are established by will than by a gift given during the giver’s life in a customary law context.

Wills can operate to ensure that customary law obligations spelt out in the will (or even as half-secret trusts to ensure confidentiality) are recognised and given legal force by the common law.

Wills can deal precisely with a range of property and obligations. They can deal with commodity property by giving it away or organising for it to be held in trust for persons to whom there are obligations. They can deal with custodianship as well, by creating trust relationships, and, for example, through the use of secret or half-secret trusts, set up a situation where a person is entitled to keep cultural information such as traditional medicines secret and pass it on.

Once accepted by the court as valid, wills may also be able to operate as evidentiary material for future claims in common law courts.

At present the barriers to will-making for Aboriginal people seem immense, but they are not insurmountable. Work on developing suitable precedents, reducing expense and enhancing access is going forward.

Prue Vines is Senior Lecturer in the Faculty of Law, University of New South Wales.

[1] This is a summary version of a long article which will appear shortly in Miller (ed) Frontiers of Family Law (2nd ed, 2002).

[2] Administration and Probate Act 1929 (ACT) Pt III; Wills Probate and Administration Act 1898 (NSW) Pt II; Administration & Probate Act 1969 (NT) Pt III; Succession Act 1981 (Qld) Pt III; Administration & Probate Act 1919 (SA) Pt IIIA; Administration & Probate Act 1935 (Tas) Pt V; Administration & Probate Act 1958 (Vic) Pt I; Administration Act 1903 (WA) Pt II.

[3] Family Provision Act 1969 (ACT); Family Provision Act 1982 (NSW); Family Provision Act 1979 (NT); Succession Act 1981 (Qld); Inheritance (Family Provision) Act 1972 (SA); Administration & Probate Act 1958 (Vic); Testators Family Maintenance Act 1957 (Tas); Inheritance (Family and Dependant’s Provision) Act 1972 (WA).

[4] I Keen, ‘Kinship’ in RM Berndt and R Tonkinson (eds), Social Anthropology and Australian Aboriginal Studies (1988); D Bell, Daughters of the Dreaming (1983).

[5] Community Services (Aborigines) Act 1984 (Qld); Community Services (Torres Strait Islanders) Act 1984 (Qld).

[6] Aboriginal Affairs Planning Authority Act 1972 (WA), s 33.

[7] Aboriginal Affairs Planning Authority Act Regulations 1972 (WA), reg 9.

[8] Aboriginal Affairs Planning Authority Act 1972 (WA), s 35.

[9] There is therefore a question whether the regulations are ultra vires and void.

[10] Milirrpum v Nabalco Pty Ltd and the Commonwealth of Australia [1971] 17 FLR 141 at 272.

[11] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[12] For example, the NSW Aboriginal Land Fund: the Aboriginal Land Rights Act 1983 (NSW) set up land councils (representative Aboriginal groups) who could claim (rarely) or buy land with the funds derived from land tax. 7.5 per cent of all State land tax raised between 1984 and 1998 was put into the land fund to provide an interest-earning investment with an income that could be used to buy land. This was particularly important in NSW, which is the most settled State of Australia and has the highest proportion of dispossessed Aboriginal people.

[13] For example, trusts: Aboriginal Land Trusts Act 1966 (SA); Aboriginal Land Act 1991 (Qld); Torres Strait Islander Act 1991 (Qld); for political reasons the legislation in Victoria is partly Commonwealth legislation—Aboriginal Land Act 1987 (Cth) and Land Act 1991 (Vic).

[14] See T Janke, Our Culture, Our Future; proposals for recognition and protection of Indigenous Cultural and Intellectual Property (1997).

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