Intestacy Rules For Indigenous Australians (NT)
When a person passes away in the Northern Territory, they either have a valid, comprehensive will that disposes of their assets, or they are intestate. A person can also be partially intestate if they have a will that does not account for all their possessions. The Administration and Probate Act 1969 contains strict rules for the administration and distribution of an intestate estate in the Northern Territory. Under this law, there are further special intestacy rules for indigenous Australians in the Northern Territory.
What is intestacy in the Northern Territory?
A person might not have a valid will for several reasons. Someone who dies unexpectedly might have postponed making testamentary arrangements because they did not expect to die for many years. Some people assume that because they have few assets, it is not necessary to make a will.
- made by an adult (or authorised minor) with testamentary capacity;
- in a written form;
- signed by the will-maker with a genuine intention to execute the will; and
- witnessed by two people who are not themselves beneficiaries of the will.
Intestacy rules in the Northern Territory
An intestate person’s deceased estate is made up of property such as real estate, money in bank accounts, shares, and vehicles, and debts such as loans, mortgages and credit cards.
Standard intestacy provisions in the Northern Territory privilege the rights of the deceased’s spouse and children to inherit the deceased estate. The exact distribution of an intestate estate in the Northern Territory depends on the size of the estate and other considerations:
- A spouse inherits everything if there are no children, siblings or parents. If there is more than one spouse, they share the intestate estate;
- The deceased’s children inherit the entire estate if there is no spouse or de facto partner;
- When the deceased has both a spouse and children/grandchildren, the estate is divided in the following way:
- An estate worth $350,000 or less is inherited entirely by the spouse;
- When the estate is worth more than the statutory amount, the spouse inherits the first $350,000 and
- Half of the remaining estate if there is one child/grandchild or
- One-third of the remaining estate if there are several children/grandchildren.
- When the deceased is survived by a spouse, parents and/or siblings, but has no children, then the spouse inherits the first $500,000 and half the remaining estate. The other half of the remaining estate is inherited by the parents or, if they are deceased, any siblings.
- Otherwise, the order of inheritance in intestacy is parents, siblings, grandparents, uncles and aunts and when the deceased had no family, the Northern Territory government.
Intestacy Rules for Indigenous Australians in NT
These intestacy rules privilege a western interpretation of family. The law benefits the deceased’s spouse and children, and other family members before more “distant” relatives such as aunts, uncles and cousins. This order of succession privileges lineal bloodline relationships in a way that is not reflected in Indigenous customary law and social structures. While each community group has their own distinct customs, Indigenous kinship often incorporates adopted, collateral and maritally linked relatives into close family. Indigenous communities also privilege “acceptance” as an essential element of the definition of family in a way that is not prevalent in western culture. As such, an indigenous deceased may consider a “distant” blood relative to be closer kin than a parent or sibling.
The Northern Territory has made some legal provisions to recognise elements of Indigenous customary law as it relates to intestacy. This is particularly important because there is a disproportionately high rate of intestacy within the indigenous community. This high incidence has been attributed to Indigenous geographical mobility and disparate cultural practices. Particularly, for some Indigenous people, there is a rejection of western attitudes towards ownership of land. Under customary law, land is a sacred, living entity that should not be commodified.
These factors have been recognised by lawmakers. Section 71B of the Administration and Probate Act recognises claims from Indigenous people under the customs and traditions of the deceased’s community. Within six months of the grant of probate, a person needs to prepare an application for the distribution of the intestate estate according to these customs. The applicant must serve notice of the application to the administrator of the intestate estate. The court can extend the deadline and impose conditions on the extension but cannot grant an extension after the estate is fully distributed.
The court can order distribution of the intestate estate in any form it deems just given the plan of distribution and the traditions of the indigenous deceased. The court cannot make an order for distribution that disturbs a proper distribution that provides for the maintenance, education and advancement in life of a dependent of the deceased.
In addition, it should be noted that a spouse or de facto partner has further rights over the “matrimonial” home.
These provisions are a step forward in recognising Indigenous traditions and customs, but they may not adequately account for the deceased’s own wishes. As such, it is still important that an Indigenous Northern Territorian makes a will that outlines their own testamentary instructions.
Since the introduction of these intestacy rules, there have been few cases brought to the Supreme Court under Section 71B of the Act. One notable example is the case of Application by the Public Trustee for the Northern Territory re Estate of Najaluna. In this case, the deceased left a small cash estate and no next of kin. The Public Trustee applied for an order pursuant to a plan of distribution prepared in consultation with senior members of the deceased’s clan, the Jawoyn people. The clan leaders swore affidavits to the effect that the deceased was “grown up” by a Jawoyn man, and Shorty Najalung considered this man’s family to be his family. As such, they were entitled to a distribution from his intestate estate. Justice Martin was satisfied that the estate should be distributed according to the submitted plan of distribution.
If you have questions about the unique intestacy rules for indigenous Australians in the Northern Territory, please call 1300 636 846 or contact the team.