LANE, Serita v ROWE, Trevor by his Litigation Guardian LAPINSKI, Simon [2025] NTSC 37 | Case summary

Supreme Court of the NT|2025-09-26|Before: Huntingford J

SUCCESSION - Intestacy - Entitlement to grant on intestacy - Indigenous estate - Whether distribution is just in all the circumstances - Whether deceased was in a de facto relationship - Culturally appropriate distribution - Estate distributed in accordance with distribution plan.

In the Estate of Walker [2025] NTSC 37

TREVOR ROWE BY HIS LITIGATION GUARDIAN SIMON LAPINSKI

[1] On 17 June 2025 I made an order pursuant to s 71E of the Administration and Probate Act 1969 (NT) ('the Act') that the estate of the deceased be distributed in accordance with the plan of distribution which is Annexure A to these reasons. I now provide the reasons for that decision.
[2] On 13 August 2024 I made an order appointing Derek Japangardi Williams and Serita Lane as joint administrators of the estate of Kumanjayi Walker.
[3] The administrators sought an order pursuant to ss 71B and 71E of the Act that the estate of the deceased be distributed in a manner specified by the Court in accordance with the plan of distribution submitted by the Administrators which they say is in accordance with the traditions of the communities or groups to which the deceased belonged.
[4] The administrators rely upon the following evidence:
1. Affidavits of Derek Japangardi Williams made 18 January 2024, 14 February 2024 and 12 December 2024;
2. Affidavits of Serita Lane made 22 January 2024 and 25 October 2024;
3. Affidavits of Alison Phillis made 17 May 2024 & 12 August 2024;
4. Affidavit of Marcia Curtis made 12 November 2024;
[5] The deceased was a Warlpiri and Luritja man who was born on 13 October 2000 and died on 9 November 2019 at Yuendumu. He was 19 years old at the date of his death.
[6] The parents of the deceased were Frank Walker and Selina Lane, who are both deceased.
[7] The deceased was unmarried at the time of his death and did not have any children.
[8] The deceased died without leaving a Will. The size of the estate is modest, at around $105,000 and consists of the proceeds of a class action in which the deceased was a participant at the time of his death. The proceeds of the class action were received on or about 1 February 2024.

[9] The deceased was raised by Leanne Oldfield who is from the deceased's mother's side of the family. On 10 February 2023 Ms Oldfield published a notice of intention to apply for letters of administration in relation to the estate.
[10] Derek Williams is a paternal uncle of the deceased and in his affidavit of 18 January 2024 he deposes that he has been appointed as the representative of the Walker family. On 16 December 2022 Mr Williams published a notice of intention to apply for letters of administration.
[11] Serita Lane is the deceased's maternal aunt. In her affidavit she says that the Lane family have asked her to represent their family.
[12] Derek Williams and Serita Lane have each deposed in their affidavits that on 14 December 2023 an agreement was reached by family members of the deceased at a mediation that they would be appointed as joint administrators of the estate. A copy of the agreement (the first mediation agreement) is annexed to Mr Williams' affidavit of 18 January 2024.
[13] The first mediation agreement lists the people who were present at the mediation. There were representatives of both the Lane and Walker families, including Derek Williams. Serita Lane has explained that she was not at that mediation, but her sisters were, and the family asked her to be involved because she can speak more articulately than others in the family. Leanne Oldfield is listed as one of the people who was present at the mediation and who signed the first mediation agreement.
[14] The main purpose of the first mediation was to determine who was to be the administrator of the estate of the deceased. Agreement was reached that it would be the two administrators who were ultimately appointed on 15 August 2024.

[15] The persons entitled to a distribution of the estate of a person who dies intestate is set out in s 66(1) of the Act, which provides that the distribution shall be ascertained by reference to Schedule 6.
[16] However, s 71E provides that:

(1) Notwithstanding any other provision of this Act but subject to this Division, the Court may order that an intestate estate or a part of an intestate estate be distributed in the manner specified by the Court.

(2) The Court shall, in making an order for the distribution of an intestate estate under this Division, take into account:

(a) the plan of distribution prepared under section 71B(2); and

(b) the traditions of the community or group to which the intestate Aboriginal belonged.

(3) The Court shall not make an order for the distribution of an estate under this Division unless it is satisfied that to make the order would, in all the circumstances, be just.

[17] The effect of s 71E is that upon application in accordance with s 71B, including a plan of distribution, where the Court is satisfied of the matters in the section, the estate of an Aboriginal person who dies intestate can be distributed as the Court orders, rather than in accordance with s 66, and Schedule 6, of the Act. However, it is necessary that the Court be satisfied that the proposed distribution is just in the circumstances. That requires consideration of all relevant matters, including the relationships of the deceased and who might otherwise be entitled to a distribution on intestacy.

[18] Schedule 6, Part 1, item 3 of the Act provides that where an intestate is not survived by issue, but is survived by, relevantly, a brother or sister, and a spouse, the spouse is entitled to the value of the estate which does not exceed the prescribed amount. The prescribed amount is currently 370,000 monetary units. The value of a monetary unit is $1.19. The value of the deceased estate is well under the prescribed amount. The result is that if the deceased had a spouse or de facto partner at the date of his death, they would be entitled to the whole of the estate on distribution on intestacy in accordance with Schedule 6.
[19] A spouse is, relevantly, defined in s 19A of the Interpretation Act 1978 (NT) as either a person who was validly married under the Marriage Act 1961 of the Commonwealth or an Aboriginal person to whom the person is married according to the customs and traditions of the particular community of Aboriginal people with which either person identifies.
[20] A de facto partner is defined in s 3A of the De Facto Relationships Act 1991 (NT) as a person with whom a person is in a marriage-like relationship taking into account the matters in s 3A(2) of that Act which include the duration of the relationship, the nature and extent of common residence, whether or not a sexual relationship exists, the degree of financial dependence or interdependence, and any arrangements for financial support, between them, the ownership, use and acquisition of property, the degree of mutual commitment to a shared life; the performance of household duties; and the reputation and public aspects of their relationship.
[21] At some time before his death the deceased had been in a relationship with Rickisha Watson Robertson.
[22] Serita Lane's affidavit sworn 22 January 2024 lists the deceased's family members at the date of his death. Ms Watson Robertson is noted as 'partner at the time'.
[23] Marcia Curtis deposes in her affidavit of 12 November 2024 that the deceased was, at some time after he moved from Papunya when he was 17 or 18 years old, living with Ms Watson Robertson's family in Yuendumu. Ms Curtis does not say exactly when or for how long, or whether Ms Watson Robertson was living there too.
[24] In the first mediation agreement a note next to the names of participant Eddie Robertson says "(Grandfather of Rickisha (KW wife at the time))".
[25] In his affidavits of 18 January 2024 and 12 December 2024, Derek Williams deposes that the deceased and Ms Watson Robertson were separated at the time the deceased passed away. In his later affidavit Mr Williams says that he believed that to be the case because prior to his death, the deceased had been sentenced to prison for 18 months for assaulting Ms Watson Robertson and during that time she began seeing other men and formed a relationship with one of them within five months of the deceased's death. Mr Williams said that would not have happened if the deceased had been in a de facto relationship with Ms Watson Robertson at the date of his death as the mourning period in Warlpiri culture is 12 months.
[26] I ordered that Ms Watson Robertson be served with the relevant documents in this proceeding in order that she have the opportunity to exercise her right to be heard on the application for distribution. Derek Williams, who is an Aboriginal Community Police Officer, signed a statutory declaration stating that he delivered copies of the initiating application and supporting affidavit to Ms Watson Robertson at Yuendumu on 18 April 2024. A copy of that statutory declaration is annexed to Ms Phillis' affidavit of 17 May 2024. Ms Watson Robertson was also served with a Citation to Pray for Administration on 25 June 2024.
[27] Ms Watson Robertson has not taken any steps to participate in the proceeding.
[28] The only evidence as to a spousal relationship are the matters I have referred to above. There is no evidence that the deceased and Ms Watson Robertson were legally married. There is insufficient evidence as to the nature or quality of the relationship between the deceased and Ms Watson Robertson to enable me to find on the balance of probabilities either that Ms Watson Robertson and the deceased were married in accordance with the customs and traditions of their community, or that they were in a de facto relationship within the meaning of s 3A of the De Facto Relationships Act. There is an obvious possibility that that was the case, but that is not enough.
[29] Therefore, as the deceased appeared to have no spouse or de facto wife, and no children, and his parents predeceased him, the persons entitled to take on intestacy would be the deceased's next of kin, namely his siblings.
[30] The deceased has two maternal half-brothers, Fabian Rowe and Trevor Rowe and a paternal half-sister, Shakira Walker.
[31] In the circumstances it was appropriate that those who would be entitled to take on intestacy be joined as defendants and I therefore made orders joining the siblings and requested that they be served.
[32] Although not joined as parties, I also ordered that Joseph Lane, the grandfather of the deceased who had attended the proceeding on the first mention date and therefore showed an interest in the proceeding, also be served. The affidavit of Ms Phillis of 17 May 2024 deposes that Joseph Lane was served on 4 March 2024. Mr Lane has not sought to be heard in relation to the application.
[33] Trevor Rowe and Fabian Rowe filed appearances in the proceeding and were represented by a firm of solicitors. As Trevor Rowe is a minor, a litigation guardian was appointed to represent him on 17 June 2025. Regrettably, this aspect caused significant delay in the resolution of the matter, which was not the fault of the litigation guardian.
[34] Alison Phillis' affidavit of 17 May 2024 deposes that Shakira Walker resides in Yuendumu. Derek Williams has signed a statutory declaration stating that he delivered copies of the documents in the proceeding to Shakira Walker on 2 May 2024. A copy of that statutory declaration is annexed to Ms Phillis' affidavit.
[35] Shakira Walker has not sought to be heard in the proceeding.

[36] Serita Lane's affidavit of 25 October 2024 deposes that a further mediation took place at Yuendumu on 2 October 2024. She says that the outcome of that mediation was that the family members present agreed to make a joint submission to the Court as to the culturally appropriate distribution of the estate. A copy of the mediation agreement (second mediation agreement) is attached to Ms Lane's affidavit.
[37] The second mediation agreement includes a plan of distribution which details how the funds in the estate are to be distributed. That plan includes a distribution of $7,000 to each of Shakira Walker, Fabian Rowe and Trevor Rowe with the balance of the estate to be distributed to others in a percentage share after payment of costs and expenses.
[38] Joseph Lane and Annie Lane (nee Dixon), the maternal grandparents of the deceased, are to receive 12% of the residual estate each. They are to share that portion with their own son and daughter who were close to the deceased. Serita Lane, Arnold Butler, Suzie Lane and Isobelle Lane are to receive 4% each and Leanne Oldfield 10%, to be shared with her mother, Margarette Brown.
[39] The agreement reached following the mediation of 2 October 2024 is said to supersede all previous written and oral agreements. The agreement appears to be signed by Derek Williams, Serita Lane, Trevor Rowe (in the presence of his grandfather Bundi Rowe) Fabian Rowe and Shakira Walker.
[40] The second mediation agreement is more detailed than the first mediation agreement. The first mediation agreement simply stated that monies would be shared between the Walker and Lane families equally, and that provision was to be made for Ms Watson Robertson and her grandparents by the Walker family. In the second mediation agreement it is provided that Ms Watson Robertson and her grandparents will receive 11% of the residual of the estate.
[41] Serita Lane deposes in her affidavit of that the distribution was prepared by her and her brother and is agreed by the family as culturally appropriate.
[42] Derek Williams in his affidavit of 12 December 2024 gave a social history of the deceased's time growing up. Mr Williams said that the deceased lived with his father's former partner, Leanne Oldfield, after she and the deceased's father separated until the deceased moved back to Yuendumu aged about 12. By that time the deceased's father had passed away and his uncle Desmond Walker and Desmond's son, Lucas, had moved away. Desmond Walker gave Derek Williams and his brother Jabison Walker permission to be there when the deceased went through initiation. Mr Williams says that in Walpiri culture when you take someone through initiation, he becomes your son, and you become responsible for him. So, after that time Derek Williams and Jabison Walker were considered the deceased's fathers.
[43] Derek Williams states that the deceased lived mainly in Yuendumu and got into a lot of trouble when he was young. He was sent to Papunya to be with his mother's family at one time but only stayed a few days before returning to Yuendumu.
[44] Derek Williams explains in his affidavit that the people listed in group 4 of the distribution plan, who are to receive 19.5% of the residual of the estate between them, are the children and grandchildren of Towzer Walker, the great grandfather of the deceased, and his wife Maudie Napaljarri. Mr Williams says that according to Warlpiri tradition, the father's side is recognised first, including in relation to sorry business and men's and women's business and distribution of property upon death. The father's family would share anything they receive with the mother's side, and then with the extended family.
[45] Derek Williams says that sharing money and resources is part of Aboriginal culture and belief and everyone in his community is aware of and complies with that requirement. There is also an obligation to contribute where there is need, including for example when food is required for a ceremony. Mr Williams deposes that the proposed distribution is consistent with Warlpiri tradition.
[46] Marcia Curtis made an affidavit on 12 November 2024 in which she deposes to the fact that she is the auntie of the deceased according to Aboriginal tradition. She says that the deceased's father was her cousin. She knew the deceased when he was born and chose his name.
[47] Marcia Curtis was born and grew up in Yuendumu and learnt about Warlpiri culture from her grandmother, Daisy Napaljarri and from her other aunties who have now passed away. Ms Curtis says that in Warlpiri culture when someone passes away the immediate family move out of the house and an uncle usually moves in. Any money is given to the family, first to the children if there are any, and otherwise shared among the family.
[48] Marcia Curtis says that she attended the mediation on 2 October 2024 because her cousin, Kevin Williams, was ill. She determined the distributions among the branch of the family detailed at group 5 of the distribution plan, who are to receive 19.5% of the residual of the estate between them.
[49] Marcia Curtis says that in Warlpiri culture people always share their money, for example royalty payments, with family members. She says that when the estate is distributed, those who receive a distribution will share with other more remote family.

[50] In this matter extensive consultation has occurred including two mediations. The second mediation took place in the context of the proceedings on foot and with the benefit of legal advice. It seems to me that the families have worked hard to reconcile the demands of Warlpiri and Luritja culture, which appear to have different arrangements for distribution of property on death, against the background of the legal requirements of the Act. The matter was not without some difficulty and novelty as a result of those matters. Various parties including the parties to the proceeding and Leanne Oldfield were represented by solicitors. It was agreed that those costs, including Leanne Oldfield's legal costs, should be paid out of the estate. I am of the view that that is appropriate. The amounts sought were agreed by the parties.
[51] On the basis of the evidence presented and the submissions of counsel, and noting that the two defendants who appeared in the proceeding indicated their consent to the proposed distribution, and Shakira Walker was a signatory to the settlement agreement of 2 October 2024, I am satisfied that:
1. The deceased was an Aboriginal person who died intestate;
2. Each of the persons specified in Annexure A is a person entitled to take an interest in the estate of the deceased under the customs and traditions of the community or groups to which the deceased belonged; and
3. It is, in all the circumstances, just to order that the estate be distributed in accordance with the distribution plan at Annexure A.

(a) That Simon James Lapinski be appointed litigation guardian for the first defendant;

(b) That pursuant to s 71E of the Administration and Probate Act 1969 (NT) the estate be distributed in accordance with the distribution plan at Annexure A;

(c) That the costs of the plaintiffs be paid out of the estate fixed in the amount of $24,564 inclusive of costs and GST;

(d) That the costs of the defendants be paid out of the estate fixed at $15,043.44 inclusive of disbursements and GST; and

(e) That the costs of Leanne Oldfield be paid out of the estate, fixed at $3000.

For distribution to the descendants of Towzer and Maudie Napaljarri

For distribution to the descendants of Towzer Walker and Daisy Napaljarri

For herself and her grandparents Eddie and Lottie Robertson

Facto Relationships Act 1991

LANE, Serita v ROWE, Trevor by his Litigation Guardian LAPINSKI, Simon

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