Blood thicker than water: novel intestacy case in NSW, Aboriginal half-sisters vs adoptive half-sisters

indigenous-gentStarting the year off on a very novel case of an intestacy contest, Justice Lindsay of the Supreme Court of New South Wales was called to determine how distribution of an indigenous man’s estate should be distributed where his surviving family were Aboriginal half-sisters and adoptive half-sisters.

The case of Re Estate Wilson, Deceased [2017] NSWSC 1 dealt with the late Mr Wilson’s estate. Mr Wilson was an indigenous man who was adopted into a non-Aboriginal family. He died leaving no spouse or issue and the only potential beneficiaries of his estate upon intestacy were those who were party to the proceedings.

The plaintiffs were Mr Wilson’s Aboriginal half-sisters and the defendants were his adoptive half-sisters. Mr Wilson’s birth mother had gone on to subsequently have further children, three daughters.  Mr Wilson’s adoptive parents subsequently split over the years and his adoptive father had remarried and had further children.  The deceased didn’t have much of a relationship with his adoptive-siblings from about 1982.  In 1993, Mr Wilson’s half-siblings searched for and found Mr Wilson following the abandonment of the system of closed adoptions (see Adoption Information Act 1990 NSW) and they subsequently became his closest family.

In New South Wales, the Succession Act 2006 (NSW) has a part 4.4 that deals with Indigenous Persons’ Estates.  Section 133 of Part 4.4 states that “.. 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, may apply to the Court for an order for distribution of the intestate estate..”.

Section 134 of the Act states that the Court, in formulating such an order, must have regard to (a) the scheme  for distribution submitted by the applicant and (b) the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged. The legislation also states that the Court may not make an order unless the Court is satisfied that “the terms of the order are, in all the circumstances, just and equitable.”

In addition to the considerations of the Indigenous person, the Court had to consider the impact of Adoption.  As a well understood rule, the Succession Act regards an adopted child to be a child of adoptive parent or parents  for the purpose of the rules of intestacy (s109).

For those that wish to skip to the end, I encourage you to read the judgement! Whilst the judgement is lengthy, it is quite interesting.

Ultimately, the Court posed the essential question for determination in this case as:

The ultimate question for the Court under section 134, in the current proceedings, is, essentially: Had the deceased (a person without dependants) been required to make a will disposing of his estate, what are the terms of the will he would have made having regard to the interests of any person who had a just or moral claim on him, and the interests of those for whom he might reasonably be expected to have made provision, paying due regard, in all the circumstances, to what would be just and equitable?

 

In considering the matter carefully, Justice Lindsay stated:

The fact of adoption (of the type contemplated by section 109 of the Succession Act) is of critical significance because, in the context of this case, it created a disconnection between the deceased’s (Aboriginal) birth family and that separate family into which, by legislative force, he was adopted. That disconnection opened the door to Part 4.4’s operation.(para 60 – emphasis added)

 

The Court further stated the importance of the relationship:

Nevertheless, for the reasons stated, upon my reading of Part 4.4 of the Succession Act little, or no, legal significance attaches to characterisation of the deceased’s adoption as “forced”. The 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.(para 70)

 

In determining the matter, the Court said:

  • the plaintiffs had established they had the grounds necessary to envliven the Court’s discretionary jurisdiction under s134 of the Succession Act.
  • The plaintiff’s claim was made within the time period specified and no part of the estate had been distributed.
  • The estate had been fully identified and the only challenge to it’s collection was the absence of a grant.  The deceased died with no debts and therefore the estate would be capable of being distributed without delay.
  • in exercising discretion, the Court had regard to the following: “the deceased was born; adopted; raised in a broken family by an adoptive mother; known, only briefly, and in passing, by adoptive half-sisters; and actively located and lovingly embraced, by his Aboriginal half-sisters and their respective families”.
  • the Court was satisfied that there were “…no laws, customs, traditions or practices of the deceased’s Indigenous community that would stand in the way of the deceased had he decided to exercise his own autonomy by making a will, or standing in the way of claims on his bounty. They have the status whether “family”is defined by blood line, cultural affinity or social interactions.  It is in accordance with the laws, customs, traditions and practices of the deceased’s Indigenous community that, as his closest family, they be favoured in distribution of his estate.”
  • s109 of the Act does not stand in the way of a distribution order being made under Part 4.4 of the Act;
  • there is no foundation for a finding that Mr Wilson refrained from making a will with the deliberate intention that his estate be distributed according to the general rules of intestacy;
  • there is a strong probability that Mr Wilson would have left his whole estate to the plaintiffs (but noting that there may be a possibility that he may have made some small bequest for the defendants);
  • that a distribution order that did not make any provision for the defendants would not be just and equitable;
  • that making an order substantially in favour of the plaintiffs would be just and equitable;

The Court awarded:

  • $4,000 legacy to each of the defendants (totalling $8,000.00) and
  • the rest and residue of the estate to the plaintiffs in equal shares as tenants in common.

You can read the [very interesting] case here.

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5 thoughts on “Blood thicker than water: novel intestacy case in NSW, Aboriginal half-sisters vs adoptive half-sisters

  1. I do wonder what happened to the superannuation and insurance entitlements? Would/did the trustees follow the court in determining the beneficiaries? The judgment spoke of the Superannuation and insurance as part of the estate?

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    1. I suspect that the superannuation trustees would have no choice but to pay the benefits to the estate on the basis of no eligible dependents. Which would then mean that the plaintiffs would receive those proceeds as the residual beneficiaries of the estate.

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