Prior to the amendments, there was no separate legislative
provision for the operation of the intestacy rules for indigenous
people in New South Wales.
Section 101 of the Succession Act, defines an Indigenous person
as "a person who:
is of Aboriginal or Torres Strait Islander descent,
identifies as an Aboriginal person or Torres Strait
is accepted as an Aboriginal person by an Aboriginal
community or as a Torres Strait Islander by a Torres Strait
In line with the
National Committee on Uniform Succession Law's
recommendation, the Amendment Act provides "an
alternative regime for the distribution, in appropriate cases, of
the intestate estates of Indigenous people", by inserting
135 into the Succession Act. Broadly, these sections permit
"The personal representative of an Indigenous intestate,
or 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 Court for an order for distribution of the intestate
estate". Such application must be made within
"12 months of the grant of administration" and
"must be accompanied by a scheme for distribution of the
estate in accordance with the laws, customs, traditions and
practices of the community or group to which the intestate
According to the Law Society of New South Wales,
"Preparing a scheme for distribution of the estate will
require the assistance of elders of the clan to which the deceased
The high rate of intestacy among Indigenous Australians, and the
fact that existing intestacy law did not reflect Indigenous
relationships and traditions, made the introduction of the
amendments to the Succession Act a necessity. The
necessity has been canvassed by various experts:
The Law Society of New South Wales has
noted Indigenous Australians as having the "lowest
rate of will-making in Australia".
The National Committee for Uniform Succession Laws
attribute "the incidence of intestacy among Indigenous
communities" to a number of factors, including
"literacy, mobility and differing cultural
Parliamentary Secretary, Barry Collier
explains, generally "the basic order of
distribution" of an intestate estate is "first,
spouse and children; second, parents; third, siblings; fourth,
grandparents... fifth, aunts and uncles", and finally
cousins. However, such an order reflects a narrow, Western view of
The University of New South Wales, Law Professor, Prue Vines
explains, "lineal bloodline relationships",
strongly contrasts with "acceptance of collateral, adopted
or maritally linked relatives in Aboriginal customary
MP Barry Collier
commented that the amendments "mark the next step for
New South Wales in implementing the recommendations of the National
Committee on Uniform Succession Law".
Going forward, Professor Vines sees another possible avenue to
ensuring that succession law better serves Indigenous Australians
"is to increase will making in the Aboriginal
community". In accordance with the principle of
testamentary freedom, within their Wills Indigenous Australians
could set out "customary laws obligations",
along with "custodianship", "property
and obligations" and "guardianship and control
of children" which are in accordance with traditional
"laws, customs, traditions and practices".
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guide to the subject matter. Specialist advice should be sought
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There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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