CUSTOMARY RIGHTS: A court may rule according to indigenous tradition in some circumstances.
CUSTOMARY RIGHTS: A court may rule according to indigenous tradition in some circumstances. Jay Cronan

Beneficiary entitled under indigenous custom

MICHAEL, an indigenous Australian, died without a will.

He had very few physical assets but searches revealed funds in superannuation with a substantial death benefit payable.

In order to deal with the superannuation, a grant of letters of administration was required by the fund.

When Michael died he did not leave a surviving spouse, had no children or parents.

He left no siblings, nieces, nephews, aunts or uncles.

In the absence of a next of kin, the state is entitled to the whole of the estate.

However, Christopher had been cared for by Michael after living with him most of his life and as far as the community was concerned, the pair were akin to brothers.

As Michael left no other dependents, Christopher consulted a solicitor who advised there are special provisions applying to allow him to claim under the customs and traditions of the indigenous community.

Three community elders gave affidavit evidence it would be expected for Christopher to inherit Michael's estate in the absence of any other family.

Christopher gave evidence that searches to locate a will were unsuccessful.

These included searching Michael's personal effects and making inquiries with solicitors in the local area, Michael's bank and the NSW Trustee and Guardian.

The court ordered Christopher was entitled to the whole of Michael's estate by virtue of the customs and traditions of his indigenous community and it was just and equitable to grant Christopher the right to administer the estate on the basis he was the sole beneficiary.

If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or phone him on 6648 7487.