Does the Succession Act Recognise Indigenous Customary Law?

The deceased, Gerard Jerrard, died intestate at the age of 22 when he was involved in a motorcycle accident. He left no spouse or children, but both of his parents survived him.

The deceased’s mother applied for an order under Part 4.4 of the Succession Act, requesting an order distributing the whole of the estate to her.

The deceased’s father opposed the application and submitted that the ‘ordinary’ rules of intestacy should apply. Section 128 of the Succession Act provides that if an intestate leaves no children or spouse, the surviving parents of the intestate are entitled to the whole of the estate in equal shares.

The deceased’s mother submitted that under the laws, customs, traditions and practices of the Nucoorilma Clan of the Gomeroi People, to which the deceased and his parents belonged, she would be entitled to the whole of the deceased’s estate.

The deceased’s father disagreed, arguing that no such customs existed but that even if they did, it would not be just and equitable for the estate to be distributed solely to the deceased’s mother, contrary to the ordinary rules of intestacy. It is a requirement under s 134(4) of the Succession Act that the court not make a distribution order unless that order would be just and equitable in all the circumstances.

The deceased’s mother submitted evidence that under the customary laws of the Nucoorilma Clan of the Gomeroi people, a deceased’s next of kin received the whole of the deceased’s estate, if the deceased died without a spouse or child. The customary laws and traditions provided that a next of kin was the person who had born responsibility for, cared for and provided for, the deceased throughout their lifetime. The deceased’s mother raised the deceased as a single parent within the broader network of their Aboriginal community. The deceased’s father only had intermittent contact with the deceased while he was growing up.

The deceased’s father argued that he should also be considered the deceased’s next of kin as he had cared for the deceased at times and maintained contact with him as he was growing up.

The court rejected this, holding that the father was not in any “real factual sense”, responsible for the deceased’s care and only had intermittent contact with the deceased.

The court accepted the mother’s evidence of the traditional laws, customs and practices of the Nucoorilma Clan. The court also accepted that the deceased’s mother was the deceased’s next of kin.

As such, they found that, assuming the deceased would have been ‘content’ to abide by the traditional customary law of the Nucoorilma Clan, the whole of his estate would pass to the deceased’s mother.

However, the court was also required to consider whether such an order would be just and equitable.

They found that there was a strong likelihood that if the deceased had been required to make a will, he would have considered both of his parents. The Court found that the deceased would have likely favoured his mother in the will, as she was his primary carer for many years. However, the court also considered that the deceased would not have excluded his father entirely.

The Court noted five factors which favoured the father’s participation in the deceased’s estate, including:

• That the deceased’s father continued to reach out to the deceased by his regular provision of birthday and Christmas presents; and
• When in need the deceased’s father sought, and obtained, assistance from the deceased; and
• The deceased’s father, when hospitalised, was visited by the deceased (albeit reluctantly); and
• The deceased maintained good relations with his paternal grandmother and his paternal half siblings, thereby indirectly maintaining his connection with his father as part of the community to which everybody belonged; and
• That the deceased’s father was consistently proud of his son, whose loss he continued to mourn.

Based on this, the Court considered that not only was it likely that the deceased would have made some provision for his father if required to make a will, but also that it would not be just or equitable, in the circumstances, to make a distribution order excluding him.

The Court ultimately found in favour of the deceased’s mother, awarding her roughly 80% of the intestate estate. The court did make provision for the deceased’s father, awarding him a legacy of $40,000, from which a sum representing the unpaid child support he owed to the deceased’s mother would be subtracted.