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Key decisions

  • Re Estate Wilson, Deceased [2017] NSWSC 1
  • Hobhouse v Macarthur-Onslow [2016] NSWSC 1831
  • Lodin v Lodin: Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10
  • Estate of Grahame David Wright [2016] NSWSC 1779

Indigenous distribution and intestacy

The judgment of Lindsay J in Re Estate Wilson, Deceased [2017] NSWSC 1 is the first reported judgment applying the provisions of part 4.4 of the Succession Act 2006 (NSW) regarding the administration of an intestate estate of an Indigenous person.

The deceased, Mr Wilson, was an Indigenous man who had been adopted by a non-indigenous couple. Both the adoptive parents had predeceased him.

The case involved competing claims from his adoptive half-sisters (the defendants) and his Aboriginal half-sisters (the plaintiffs). Applying the usual rules of intestacy, the persons entitled were the deceased’s two adoptive half-sisters who were children of the adoptive father’s second marriage.

The relationship with the half-sisters had not been close however and the deceased had resumed a relationship with his indigenous family including his Aboriginal half-sisters. These sisters brought a claim under s 133 of part 4.4 of the Act which relevantly provides that: ‘(1) [t]he 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, may apply to the Court for an order for distribution… (2) [a]n application under this section 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 belonged.’

Lindsay J observed (at [71]–[74]) that: ‘[t]he larger facts are: first, the fact of adoption, forced or otherwise; secondly, the fact that for two decades after being “reunited” with his Aboriginal family the deceased was an integral part of that family (practically, to the exclusion of his adopted family) by the free and voluntary choice of all concerned.

The first of these facts, in the context of the case, opens the door to the operation of Part 4.4 by creating a disconnection between the terms of Part 4.3 and the Indigenous community’s understanding of family. The second engages the concept of “just and equitable” upon which Part 4.4 turns, by focusing attention on the substance, rather than merely the legal form, of family relationships.

A reunion of an adoptee with his or her birth family would not, of itself, expose his or her adoptive family’s inheritance entitlements vis-à-vis his or her estate to substantial risk of a distribution order being made. In these proceedings, a sustained pattern of social engagement over a prolonged period, coupled with a corresponding social disengagement, holds the key to what is just and equitable. The relative “entitlements” of the parties to participate in distribution of the deceased’s intestate estate are to be judged, measure for measure, by reference to their actual, voluntary participation in his life, each according to an implicit, reciprocal understanding of family.’

The redistribution of what was a modest estate gave a small legacy of $4,000 each to the otherwise entitled adoptive half-sisters (the defendadnts) and the residue equally to the competing Indigenous half-sisters (the plaintiffs).

Interestingly, both plaintiffs and defendants were self represented.

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