Vines, Prue --- "Drafting Wills for Indigenous People: Pitfalls and Considerations" [2007] IndigLawB 10; (2007) 6(25) Indigenous Law Bulletin 6

• Drafting Wills for Indigenous People: Pitfalls and Considerations
• Care with Kinship
• A Mix of Traditional and Non-Traditional Lifestyles and Property
• Considering Obligations versus Property as a Commodity – Using Equity
• Dealing with Burials
• Conclusion

Drafting Wills for Indigenous People: Pitfalls and Considerations

by Prue Vines

In previous articles^[1] I have argued that the intestacy laws in Australia are grossly inadequate to deal with the inheritance issues of Indigenous people, that it is desirable to increase the rate of will-making amongst Indigenous people and that this lack of wills is likely to exacerbate arguments about the place of burial for Indigenous people. Where property does not pass on death with certainty or where it goes to culturally inappropriate beneficiaries a community can be profoundly dislocated, making it difficult to care for children and to maintain stable environments, creating significant effects on the wellbeing of communities.

While wills are made for individuals, some of the usual assumptions may cause problems in will-drafting for Indigenous people. In this paper I suggest some of the issues that should be in the mind of the drafter when an Indigenous person is the testator.

Care with Kinship

The first and most obvious point is that because words used to indicate kinship in many Indigenous groups do not match the legal meaning of those words, care needs to be taken in determining exactly who is meant by words such as ‘children’, ‘auntie’, and even ‘mother’. In many Indigenous groups more people are designated by such terms than the common law generally recognises.^[2] The common law’s view of kinship is limited by blood^[3] and a linear view of time which may not be matched in an Indigenous person’s conception of kinship. So, in drafting, it will normally be necessary to identify by name every person who is designated by a kinship term, to ensure that the will reflects the real intentions of the testator. This is all the more important because in customary law, kinship determines obligations more strongly than it does in non-Indigenous Australia.

A Mix of Traditional and Non-Traditional Lifestyles and Property

Research shows that the population of Indigenous people is not divided into traditional and non-traditional people, but rather that any particular Indigenous person is likely to be living either or both lifestyles at different times.^[4] At the time of death Indigenous people may own property which is significant to both the traditional and non-traditional aspects of their lives. For example, they might own common-law real property (which can be passed by will) and native title property (which cannot be passed by will). They may have superannuation (this may or may not be passed by will). They may own property such as cars and other chattels recognisable to the common law. They may also own and have obligations to ritual objects or knowledge less familiar to the common law.

Considering Obligations versus Property as a Commodity – Using Equity

One of the most striking things about dealing with Indigenous people’s view of property (both land and other property) is the extent to which it is thought of in terms of obligation rather than alienability or commodification.^[5] For a long time the common law has considered property in terms of its status as a commodity, freely alienable. This raises one of the most important considerations for taking instructions from Indigenous people. That is, as well as asking what the testator owns, the drafter should also ask what obligations he or she is concerned about and how they want them dealt with. An Indigenous person may be more concerned about the obligation than the commodity aspect of the property. The question to ask about a commodity is, ‘Who do you want to give that to?’ The question to ask about obligations is slightly different because it may or may not concern what is easily regarded as property under common law.

Although it may be said that common law does not deal with obligations well, this is certainly not true of equity. This suggests that for wills for Indigenous people, a strong understanding of trusts and equitable doctrines is essential and reliance on common law views of property may not be sufficient. For example, a person may have created an artwork which is based on ritual knowledge. The artwork itself may be copyright and therefore be an item of property which the common law recognises and which can be passed on to other people. That raises no legal difficulty, except that the fact that it is based on ritual knowledge may mean that it is important to place conditions on the gift in the will. However, the ritual knowledge itself may not amount to property at common law. It certainly will not be copyright because copyright protects the expression of an idea rather than the idea itself. If the testator is the person who has done the artwork their major concern may be to ensure that the knowledge itself is protected and passed on. If it does not happen in life, can we create a vehicle in equity which will both protect and keep secret the knowledge itself? For example, can we, by the use of secret or half-secret trusts, set up a situation where a person is entitled to keep cultural information, such as traditional medicine, secret and pass it on? Can such information be recognised as property in equity? And can it be kept secret?

What property is sufficient to be the subject of a trust? The argument in Australia has been that equity retains flexibility so that it can accommodate the range of situations in which it can be applied.^[6] The High Court has recognised that property rights are extremely varied.^[7] It was held in National Trustees Executors & Agency Co of Australasia Ltd v FCT^[8] that even where a particular interest does not seem to include all the characteristics of property, it may still be recognised as such. Kitto J observed:

It may be said categorically that alienability is not an indispensable attribute of a right of property according to the general sense which the word ‘property’ bears in the law.

Ritual knowledge is more in the nature of confidential information or perhaps a chose in action. Some choses in action are clearly property in that they are chattels personal. Thus it is arguable that things like ritual knowledge may be sufficiently property-like to be the subject of a trust.

Can we use a secret trust or a half-secret trust to pass on things like ritual knowledge which under customary law should remain secret? Would a discretionary trust be better, or should we make gifts with conditions? Secret trusts arise where property is passed apparently absolutely to another person and there has been an undertaking by the holder of the property that the benefit is to be applied to another person. Such a trust with conditions is binding.^[9] Fully secret trusts involving gifts of land are regarded as constructive trusts and do not need to be in writing.^[10] Half secret trusts arise where the existence of the trust is apparent in the will but its terms are secret. Where they involve land, they must be in writing.^[11] Under the equitable doctrine of breach of confidence it may not be necessary to show that ritual knowledge is property at all,^[12] although it has been held that information can be property.^[13] Certainly, secret knowledge of Aboriginal people has been held able to be protected as confidential information.^[14] This would apply to secret information which is passed by will, as there is no necessity for the receiver of the information to have consented to the information or that there must have been a contract or other basis for it.^[15] However, in order to keep the secret, that is not to express it in the will, the use of the secret or half-secret trust may be more useful. As a will is a public document, the use of a secret or half-secret trust in combination with the doctrine of confidential information may be a useful way to protect the passing of ritual or secret knowledge.

Another important obligation is guardianship. Given the differences between Indigenous views of kinship and adoption and the common law’s views, appointing a person as guardian of children on the basis of customary law views of kinship makes sense. Although ultimately the appointment of a guardian by a will does not bind the court,^[16] the court is more likely to consider a person named as guardian than they would if there were no such provision made.

All these constructs provide ways of protecting information or other matters when they need to be passed to other people. They may be far easier to protect if they are established by will than by inter vivos gifts, particularly when what is being passed has a customary law context, which is otherwise not enforceable. The need to maintain secrecy under customary law raises particularly difficult issues, but secret and half secret trusts can be enforced. To the objection that this may expose the secret, it can be answered that at least there may be some control over the secret and whether it is communicated to a judge alone or all the world if the issue of enforceability arises. Where secrecy is less important, gifts with conditions may be useful.

Dealing with Burials

It is worth noting briefly here that appointing an executor to a will, by making it clear who has control over the body, eliminates an issue which has caused many painful disputes in relation to deceased Indigenous people.^[17]

Conclusion

This short article only skims the surface of some of the issues which need to be addressed in order to comprehensively ensure that the inheritance needs of Indigenous people are addressed properly in wills. Complex wills may need to be drafted in order to deal with both traditional and non-traditional property and obligations, and a better will for an Indigenous person may well be one which extensively uses trusts and conditions to best protect the various obligations which customary law creates, as well as the kinds of property with which the law of wills is more familiar.

Prue Vines is an Associate Professor at the Law Faculty, University of New South Wales.

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^[1] ‘When Cultures Clash: Aborigines and Inheritance in Australia’ in G Miller (ed), Frontiers of Family Law (2003) 98-119; ‘Consequences of Intestacy for Indigenous People in Australia: The Passing of Property and Burial Rights’ (2004) 8(4) Australian Indigenous Law Reporter 1-10; ‘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 16-19.

^[2] Ian Keen, ‘Kinship’ in RM Berndt and R Tonkinson (eds) Social Anthropology and Australian Aboriginal Studies (1988); Peter Sutton, Native Title and the Descent of Rights (1998).

^[3] Where adoption applies it approximates blood ties – see for example the Adoption Act 2000 (NSW) s 99(2).

^[4] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report, Volume 1, (1991) 39.

^[5] This caused problems in the leadup to the recognition of native title in land as shown in Milirrpum v Nabalco Pty Ltd (1972) 17 FLR 141, 272.

^[6] Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216.

^[7] Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at 365-366.

^[8] [1954] HCA 71; (1954) 91 CLR 540, 583 (Kitto J).

^[9] Brown v Pourau [1995] 1 NZLR 352 (unreported); Voges v Monaghan [1954] HCA 63; (1954) 94 CLR 231.

^[10] Dixon v White, unreported, SC (NSW) (Holland J), 14 April 1982; Brown v Pourau [1995] 1 NZLR 352.

^[11] Brown v Pourau [1995] 1 NZLR 352; Re Baillie (1886) 2 TLR 660.

^[12] Duchess of Argyll v Duke of Argyll [1967] Ch 302, 322. See also Prince Albert v Strange [1849] EngR 669; (1849) 1 Mac & G 25; 41 ER 1171.

^[13] For example, GD Searle & Co Ltd v Celltech Ltd [1982] FSR 92, 108, (Brightman J); Smith, Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291.

^[14] Foster v Mountford (1978) 29 FLR 233.

^[15] Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, 50.

^[16] Testamentary Guardianship Act 1984 (ACT), ss 4-7; Testators Family Maintenance and Guardianship Act of Infants Act 1916 (NSW), ss 13, 14; Guardianship of Infants Act (NT), ss 15, 16; Succession Act 1981 (Qld), Pt 5A; Guardianship of Infants Act 1940 (SA), ss 12, 13; Guardianship of Infants Act 1934 (Tas), ss 4-6; Marriage Act 1958 (Vic), s 135; Family Court Act 1997 (WA), s71.

^[17] See Prue Vines, ‘Consequences of Intestacy for Indigenous People in Australia: The Passing of Property and Burial Rights’ (2004) 8(4) Australian Indigenous Law Reporter 1-10.