Re Estate Wilson, Deceased [2017] NSWSC 1

Supreme Court of NSW|2016-12-20|Before: Lindsay J, Ms JA

he failure of intestacy law and the need for wills for customary purposes in Australia" (2001) 5 Indigenous Law Bulletin 16 Ruth Pollard, Peter Whitehead and Margaret Pringle "Administration of Intestate Estates" (2017) 43 Australian Bar Review 142 South Australian Law Reform Institute, Cutting the Cake: South Australian Rules of Intestacy (December 2015) Victorian Law Reform Commission, Succession Laws: Report (August 2013) Category: Principal judgment Parties: First plaintiff: Jill Annette Bott Second plaintiff: Michelle Muriel Gardner Third plaintiff: Susan Christine Donovan

First defendant: Collette Phillips Second defendant: Leanne Dunn Representation: Counsel: Plaintiffs: Ms JA Bott and Ms MM Gardner in person Defendants: Ms C Phillips and Ms L Dunn, in person, via telephone link

INTRODUCTION

In the first case of its kind to come before the Court, these proceedings involve competing claims to administration, and beneficial ownership, of the intestate estate of a 56-year-old deceased Aboriginal man (adopted at birth into a non-Aboriginal family) by: 1. his Aboriginal half-sisters (the plaintiffs) on a claim to a special, discretionary "distribution order" of the Court under Part 4.4 (sections 133-135) of the Succession Act 2006 NSW; and 2. his adoptive half-sisters (the defendants) on a claim of statutory entitlement under section 129 of the Act, a section in the general law provisions (found in Parts 4.2 and 4.3) governing distribution of an intestate estate.
The only known, similar case (not strictly comparable) is reported as Application by the Public Trustee of the Northern Territory [2000] NTSC 52, nominally a contest between the Crown (entitled bona vacantia) and an Aboriginal community, in proceedings brought by the Public Trustee (as administrator of the deceased's small estate) in the interests of the Aboriginal community under the Northern Territory legislation (Division 4A, sections 71-71F, of the Administration and Probate Act) upon which Part 4.4 of the Succession Act 2006 is said, not quite accurately, to have been modelled.
The plaintiffs contend that, notwithstanding the legal entitlement of the defendants under section 129 of the Succession Act, the Court should make an order, under section 134 of the Act, that the whole of the deceased's estate be distributed to them. For their part, the defendants are prepared to submit to an order that the estate be divided equally between the deceased's five sisters (the three plaintiffs and the two defendants) so that each would receive 20% of his estate.
The facts of the case require close consideration of the proper construction and operation of Part 4.4. This is because: (a) the plaintiffs invoke Part 4.4 as members of the deceased's biological family, fully engaged with him socially over two decades, claiming precedence over the defendants as members of family defined by legislation, totally disengaged from him socially over a longer period; (b) the parties' competing claims are made as relatives in equal degree, as half-siblings of the deceased, from different branches of his family; (c) the plaintiffs' claim might reasonably be characterised as founded, not on idiosyncratic notions of family in an Indigenous community, but on a universal, operational concept of family, emphasizing substance over form; (d) the defendants' claim might reasonably be characterised as founded exclusively upon a purely legal relationship, based on an adoption order of the Court, deemed by legislation to be familial despite a comparative absence of any active family engagement; and (e) Part 4.4 is full of conundrums insofar as it turns upon an elusive concept of Indigenous "customary law" and identification of an Indigenous "community or group" to which the deceased "belonged", resident in an urban area geographically removed from the land of his traditional Aboriginal heritage.
Part 4.4 is in the following terms (with emphasis added): "PART 4.4 - INDIGENOUS PERSONS' ESTATES 133 Application for distribution order (1) 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 under this Part. (2) An application under this section must be accompanied by a scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged. (3) An application under this section must be made within 12 months of the grant of administration or a longer period allowed by the Court but no application may be made after the intestate estate has been fully distributed. (4) After a personal representative makes, or receives notice of, an application under this section, the personal representative must not distribute (or continue with the distribution of) property comprised in the estate until: (a) the application has been determined, or (b) the Court authorises the distribution. 134 Distribution orders (1) The Court may, on an application under this Part, order that the intestate estate, or part of the intestate estate, be distributed in accordance with the terms of the order. (2) An order under this Part may require a person to whom property was distributed before the date of the application to return the property to the personal representative for distribution in accordance with the terms of the order (but no distribution that has been, or is to be, used for the maintenance, education or advancement in life of a person who was totally or partially dependent on the intestate immediately before the intestate's death can be disturbed). Note : For example, a distribution may have been made under section 92A of the Probate and Administration Act 1898 or section 94 of this Act. (3) In formulating an order under this Part, the Court 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. (4) The Court may not, however, make an order under this Part unless satisfied that the terms of the order are, in all the circumstances, just and equitable. 135 Effect of distribution order under this Part A distribution order under this Part operates (subject to its terms) to the exclusion of all other provisions of this Act governing the distribution of the intestate estate."
Part 4.4 differs from the Northern Territory's Administration and Probate Act in a number of respects.
Two differences are presently worthy of particular notice. First, the Northern Territory legislation does not use the expression "the laws, customs, traditions and practices" found in Part 4.4. Section 71B(1), the equivalent of section 133(1), speaks of "customs and traditions". Section 71B(2), the equivalent of section 133(2), speaks of "traditions". Secondly, section 71E(3), the equivalent of section 134(4), requires only that a distribution order be "just", not that it be "just and equitable".
The expression "laws, customs, traditions and practices" is not found in other NSW legislation that makes reference to Indigenous factors. Section 60(2)(o) of the Succession Act itself refers to "customary law". Sections 40(4) and 171(2)(b) of the Aboriginal Land Rights Act 1983 NSW refer to "cultural and heritage significance", and to "traditions, observances, customs, beliefs or history". Sections 64 and 65 of the Adoption Act 2000 NSW refer to "customs and culture and any other matters [a public servant] considers would have been raised …"
Nor is the language of Part 4.4 found in Commonwealth legislation. The Native Title Act 1993 Cth, for example, refers to "traditional laws and customs".
The expression "laws, customs, traditions and practices" found in Part 4.4 is not found in the formal recommendation (Recommendation 45) of the NSW Law Reform Commission which led to enactment of the Part, but is found in a draft South Australian Intestacy Bill 2007 appended to the Report as model legislation, never enacted in South Australia (NSWLRC Report 116 - Uniform Succession Laws: Intestacy, page 272).
Nor is it found in model legislation proposed by the Australian Law Reform Commission (The Recognition of Aboriginal Customary Laws, Report 31, 1986, Volume 2, page 260), identified in the NSW Law Reform Commission Report (paragraph [14.61] on page 245) as a form of drafting alternative to that found in "the Northern Territory legislation". The ALRC Report refers to "the customary laws of an Aboriginal community of which [the] deceased person was a member".
In speaking of "the Northern Territory model", NSW authorities appear to have referred, not to particular phraseology in the legislation, but to a contrast between the Northern Territory legislation (which embodied the concept of a "distribution order" and accommodated administration of an Indigenous intestate estate by a private administrator) and then current legislation in Western Australia and Queensland (which provided for a public servant to administer all Indigenous intestate estates). With that focus, differences between the Northern Territory legislation and the South Australian model bill were evidently lost to sight.
Part 4 (sections 34-36) of the Tasmanian Intestacy Act 2010 is in substantially the same terms as Part 4.4 of the NSW Succession Act (both of which follow the draft South Australian Intestacy Bill 2007) save that it uses the "just" rather than the "just and equitable" criterion.
Jurisdictions other than NSW and Tasmania have hesitated to enact comparable legislation: Victorian Law Reform Commission, Succession Laws: Report (August 2013), pages 93-96; South Australian Law Reform Institute, Cutting the Cake: South Australian Rules of Intestacy (December 2015), pages 153-162.
The expression "laws, customs, traditions and practices" is an unhappy one to use as a focal point in legislation such as Chapter 4 of the Succession Act because it invites uncertainty mired in obscure formality. Its origins are unclear; but they may lie in the pleadings found in Mabo v Queensland (1988) 166 CLR 186 at 195, 208 and 220, a precursor to the seminal native title judgment in Mabo v Queensland [No 2] (1992) 175 CLR 1. Chapter 4 is not limited in its focus to land or systems of land title governing a particular community. Its focus is on succession to individual property rights, across the full range of property types, in fluid communities empowered by, but not tied to, a traditional heritage.
Compelled by a need to decide a particular, concrete case, this judgment confronts the expression "laws, customs, traditions and practices" and locates meaning in ideas that inform the law of succession generally: the concept of an individual living, and dying, in community; a perceived need for recognition of just or moral claims on a deceased estate (including, but not limited to, the claims of dependants); and an associated, perceived need to provide for those for whom an intestate person might reasonably be expected to have made provision if required to make a will. These ideas are adaptable to Indigenous estates no less than to non-Indigenous ones.
The judgment endeavours to place Part 4.4, conceptually and procedurally, in the context of the Succession Act as a whole, with particular reference to the law of wills and the Court's family provision jurisdiction.

FOUNDATIONAL STATUTORY DEFINITIONS

Chapter 4 of the Succession Act (sections 101-140) presently governs the law of intestate succession in New South Wales. Part 4.1 (entitled "Preliminary"), comprising sections 101-109, contains foundational definitions.
By section 101, a person is defined as the "brother or sister" of another if they have one or both parents in common. So, in the present proceedings, but for the deceased's adoption, the plaintiffs would be his sisters because they all shared the same birth mother. Giving legal effect to the adoption, the defendants are the deceased's sisters because they shared a father. In the deceased's case, he was an adoptive father. In the defendants' case, he was a birth father.
Section 109 is in the following terms: "109. Adoption An adopted child is to be regarded, for the purposes of distribution on an intestacy, as a child of the adoptive parent or parents and: (a) the child's posthumous family relationships are to be determined accordingly, and (b) family relationships that exist as a matter of biological fact, and are not consistent with the relationship created by adoption, are to be ignored."
Section 102 defines an "intestate" as "a person who dies and either does not leave a will or leaves a will but does not dispose effectively by the will of all or part of his or her property." Section 101 defines the expression "intestate estate", accordingly, as: "in the case of an intestate who leaves a will, property that is not effectively disposed of by will; and in any other case, all the property left by the intestate."
With emphasis added, section 101 defines an "Indigenous person" as "a person who: (a) is of Aboriginal or Torres Strait Islander descent; and (b) identifies as an Aboriginal person or Torres Strait Islander; and (c) is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community."
This definition, with its three elements, is consistent with similar definitions found in, or referrable to, other Australian legislation. See, for example, the definition of "Aboriginal person" in the Aboriginal Land Rights Act 1983, section 4 and, in connection with the Aboriginal and Torres Strait Islander Commission Act 1989 Cth, observations made in Shaw v Wolf (1998) 83 FCR 113 at 117-122. In the current legislative setting I adopt the observations of Merkel J as to the character of an individual's self-identification, and community acceptance, as Aboriginal.

THE FACTUAL MATRIX

The tension between the parties' competing cases is explained by reference to the deceased's life experience.
He was born in 1956 and adopted in the same year. He was the only child of his adoptive parents' marriage. Following the separation (in 1965) and divorce (in 1967) of his adoptive parents, he remained in the custody of his adoptive mother (who died in 1980) and had but little contact with his adoptive father, who died in 1987.
At the time she gave birth to the deceased and surrendered him for adoption (in 1956), the deceased's birth mother (then aged 18 years) was unmarried. The identity of the deceased's birth father remains unknown. Before her death in 1989, his birth mother married (in 1958) and had three more children, all daughters. The first plaintiff was born in 1959, the third plaintiff was born in 1961, the second plaintiff in 1967.
Encouraged by their mother, after her death and the State's abandonment of a system of "closed" adoptions evidenced by enactment of the Adoption Information Act 1990 NSW (since repealed by the Adoption Act 2000 NSW), the plaintiffs actively searched for, and in 1993 found, the deceased.
The deceased never married. He died without a de facto partner, without issue, without dependants and without debt. The only persons who might reasonably be thought likely to have a sustainable claim on his estate are the parties to these proceedings.
In and following 1993 he actively engaged with the plaintiffs, and their respective families, as a member of family, throughout the last two decades of his life. Socially, as well as biologically, the plaintiffs became his nearest family.
The deceased's adoptive father was married three times. The first marriage (1948-1967) was productive of only one child, the deceased, by adoption. The second marriage (1969 - circa 1979) was productive of two children, the defendants. There were no children of the third marriage.
The second defendant was born in 1970, the first defendant in 1971. The younger of the two has no real recollection of meeting the deceased, but has a vague consciousness of his existence. The second defendant recalls intermittent family contact with the deceased, when he visited his adoptive father in the period before she attained the age of 12 years (in 1982) or thereabouts.
The evidence establishes that the deceased ceased to have any contact with any member of his adoptive family in about 1982, when he was aged about 26 years. His adoptive mother had died about two years earlier, in 1980. When his adoptive father died in 1987, the deceased did not participate in any way in his funeral or distribution of his estate.
The defendants lost all contact with the deceased in or about 1982, and made no efforts to resume contact with him before his death in 2013. They learned of his death after the event when contacted by a genealogist in early 2016.
The deceased was cremated at Rouse Hill on 8 July 2013. The first plaintiff is named as informant in his death certificate.

THE PROCEEDINGS

On 16 May 2016 the first plaintiff (on behalf of herself and her sisters) filed a Summons for Administration of the deceased's estate. On 8 June 2016 the defendants filed a caveat against any grant of representation being made. They filed an amended caveat, substantially to the same effect, on 21 October 2016.
In the early stages of their litigious engagement, both sides of the record were represented by solicitors. However, by the time the proceedings reached me, no party had legal representation. All were self-represented. Before me, the first and third plaintiffs appeared in person, and on behalf of the second plaintiff; the first defendant appeared in person, via telephone link, from Queensland and the second defendant appeared in person, via telephone link, from Tasmania.
The proceedings came before me, as the Court's Probate List Judge, when I was alerted by Senior Deputy Registrar Brown (the Probate Registrar) to a need for them to be case managed. I conducted an extended directions hearing on each of 25 November and 12 December 2016 leading to a final hearing on 20 December 2016.
At the conclusion of the directions hearing on 25 November 2016, by and with the consent of the parties I made formal notations and orders, inter alia, to the following effect: 1. NOTE that these proceedings concern the deceased estate of Howard Stanley Wilson who died intestate at Bankstown on 26 June 2013. 2. NOTE that the deceased was born as Robert James Clark on 17 August 1956 (to Eunice Gardner nee Clark, now deceased), father unknown. 3. NOTE that, by an order of the Supreme Court of NSW, the deceased was on 12 October 1956 adopted by Joyce Gladys Wilson and Stanley George Wilson, both now deceased. 4. NOTE that, by a Summons for Administration filed on 16 May 2016, Jill Annette Bott claims relief under part 4.4 of the Succession Act on behalf of herself, Susan Christine Donovan and Michelle Muriel Gardner. 5. NOTE that the summons is opposed by Collette Monique Phillips and Leanne Patricia Dunn, who claim an entitlement to the estate of the deceased pursuant to Part 4.3 of the Succession Act. 6. ORDER that Susan Christine Donovan and Michelle Muriel Gardner be joined in the proceedings as plaintiffs and that the plaintiffs be designated as follows: 1. the first plaintiff is Jill Annette Bott. 2. the second plaintiff is Susan Christine Donovan. 3. the third plaintiff is Michelle Muriel Gardner. 1. ORDER that Collette Monique Phillips and Leanne Patricia Dunn be joined in the proceedings as defendants and that the defendants be designated as follows: 1. the first defendant is Collette Monique Phillips. 2. the second defendant is Leanne Patricia Dunn. 1. NOTE that it is agreed between the parties that: 1. the deceased was born and adopted in 1956 as recorded above. 2. the deceased was predeceased by his natural mother, his adoptive mother and his adoptive father. 3. at the time of his death the deceased was not married or in a de facto relationship, and he had never been married. 4. the deceased died without issue. 5. the deceased's adoptive parents were divorced in the mid-1960s. 6. the deceased was the only child of the marriage between his adoptive parents. 7. the estate of the deceased comprises approximately $58,236, representing moneys standing to his credit in accounts in his name with Sydney Credit Union (estimated at about $31,059) and entitlements against Waverley Council as his employer (estimated at $27,177). 8. the estate of the deceased appears to have superannuation and life insurance benefit entitlements with Local Government Super (estimated respectively at $64,059.58 and $33,000, totalling $97,059.58) in circumstances in which he did not, during his lifetime, make a binding nomination in favour of any beneficiary. 9. there are presently no known liabilities affecting the deceased's estate. 1. NOTE that the Registrar of the Court will endeavour to make enquiries as to the availability of the following court files: 1. the adoption file relating to the adoption order made on 12 October 1956. 2. the divorce file relating to dissolution of the marriage of Joyce Gladys Wilson and Stanley George Wilson. 3. the probate file, if any, relating to the deceased estate of Joyce Gladys Wilson, who died on 17 June 1980. 4. the probate file, if any, of one or more persons named Stanley George Wilson, who may have died on 6 October 1987 or at a subsequent time. 1. NOTE that, as presently advised, the questions of fact which may require a determination by the Court appear to be limited to: 1. identification of the person or persons known as Stanley George Wilson who may have been the adoptive father of the deceased and the father of the defendants. 2. the nature, scope and duration of any contact between the deceased (on the one hand) and (on the other hand) his adoptive father and the defendants respectively following the separation and divorce of his adoptive parents .
Although not formally recorded at the directions hearing, during the course of the directions hearing the parties disclaimed knowledge of any document that might (pursuant to section 8 of the Succession Act) constitute an informal will of the deceased, and they agreed that they knew of no person who is or may be an "eligible person" within the meaning of Chapter 3 of the Succession Act, the chapter governing applications for family provision relief.
Following the directions hearing, the Court located the adoption file and the divorce file, but no material probate file, in the Court's archives. I draw no inferences from the absence of a probate file, conscious as I am that such files may have been culled in management of the archives.
At the conclusion of the directions hearing on 12 December 2016, by and with the consent of the parties I made formal notations and orders, amongst others, to the following effect: 1. NOTE that the parties have disclaimed knowledge of any document that might (pursuant to section 8 of the Succession Act) constitute an informal will of the deceased, Howard Stanley Wilson. 2. NOTE that the parties have agreed that they know of no person who is or may be an "eligible person" within the meaning of chapter 3 of the Succession Act. 3. NOTE that the parties have agreed that the questions of fact which require a determination by the Court are limited to those identified by the Court on 25 November 2016. 4. ORDER that the proceedings be listed for a final hearing on 20 December 2016. 5. NOTE that all parties agree that that hearing is to be conducted on an informal basis, allowing each party an opportunity to be heard without any necessity for compliance with formal rules of evidence. 6. NOTE that all parties agree that, should they choose to do so, the defendants may participate in the hearing via telephone rather than in person. 7. ORDER that each party may, for the purpose of these proceedings, have access to the adoption and divorce files located by the Court.
At the hearing on 20 December 2016 the plaintiffs appeared (by the first and third plaintiffs) in person and the defendants appeared, in person, via telephone link. Affidavits, exhibits and written submissions earlier filed and served, or marked by the Court, consequentially upon case management orders were formally noted. As agreed between the parties, the hearing was conducted, in effect, by me allowing each side of the record to tell their story afresh, to put questions to the other side through me, and to make submissions generally. The hearing concluded with an acknowledgement, on each side of the record, that the parties had had a fair opportunity to present their respective cases.

OBSERVATIONS ON THE QUESTIONS IN DISPUTE AND THE EVIDENCE

As it happens, there is little factual disputation. Although the plaintiffs have seized upon inconsistencies in observations made in peripheral, official documents about the date of death of the deceased's adoptive father and the father of the defendants to challenge the standing of the defendants, I am satisfied that there is nothing in this. The deceased's adoptive father and the defendants' father were one and the same.
I accept the second defendant's evidence that, as a girl, she had personal contact with the deceased at their father's residence. The Court's divorce file and the death certificate of the defendant's father are consistent with that identification. The divorce petition identifies the man's year of birth as 1920. The death certificate records that when he died in 1987 he was aged 67 years. The divorce file records his occupation as that of a publican. His death certificate records his occupation as that of an assistant club manager. There is no real room for doubt in identification of the lineage of the defendants or their entitlement (under section 129 of the Succession Act) to the whole of the deceased's estate, subject only to the operation of Part 4.4 of the Act.
Nor is there any dispute between the parties as to the status of the deceased as an "Indigenous person" within the meaning of the Succession Act, section 101. The plaintiffs' evidence (not challenged by the defendants) is that their birth mother was of Aboriginal descent, hailing from the "the Gunditjmara nation" in western Victoria. The deceased was no less of Aboriginal descent than her. During the course of his life, at least after being "reunited" with the plaintiffs, he identified as an Aboriginal person. From at least that time, he was accepted by them as an Aboriginal person. They, in their turn, have maintained a connection with the Gunditjmara nation. All lived openly as members of the Sydney Aboriginal community. The deceased satisfied all the elements of the definition of "Indigenous person".
In truth, there is no real factual dispute between the parties as to the nature, scope and duration of contact between the deceased, his adoptive father and the defendants following the separation and divorce of the deceased's adoptive parents. The larger question in the proceedings is the proper construction and operation of Part 4.4 of the Succession Act.
Before turning to that topic, I make the following observations about the factual matrix of the proceedings.
First, although there is no direct evidence bearing upon the deceased's testamentary intentions, the plaintiffs say that they did urge him to make a will but, for whatever reason, he did not do so. There is no evidence of a refusal to make a will, or of a conscious decision to die intestate. Nor is there any evidence, one way or another, bearing upon what is said to be a cultural inhibition against will-making in Aboriginal communities. In the context of Part 4.4 of the Succession Act, the evidence is wholly silent as to the deceased's testamentary intentions, if any.
Secondly, although the plaintiffs' Summons for Administration was filed nearly 3 years after the death of the deceased, the parties' competing applications for a grant of administration are not in any sense affected by a limitation period. In particular, the limitation period for which section 133(3) of the Succession Act provides has no scope for operation because it provides for a limitation period that runs from the date of a grant of administration.
In any event, although the plaintiffs have identified the nature and extent of the deceased's estate (and made contact with the institutions from which it remains to be recovered), the process of collecting and distributing the estate remains to be performed.
In passing, it is not without significance to record that part of the plaintiffs' explanation for their delay in making an application for administration is that, conscious of the pivotal importance of the concept of Indigenous "laws, customs, traditions and practices" to the operation of Part 4.4 of the Succession Act, they made enquiries of a Victorian Local Aboriginal Land Council about the existence and content of any "laws, customs, traditions and practices" that might be associated with succession to property in the Gunditjmara community. One consequence of their enquiries was that they had to resist a suggestion that the Land Council itself might have an entitlement to the deceased's estate. Another was that they were told by an elder that the disposition of a deceased estate was ultimately a matter for the family of the deceased person to decide between themselves.
Thirdly, no party has placed before the Court expert or formal evidence as to the existence or content of "the laws, customs, traditions and practices" of any Indigenous community or group to which the deceased may have belonged. The highest the evidence rises on that score is the plaintiffs' repetition of the elder's advice about decision-making precedence given to family, coupled with their own claims to be the deceased's family.
Fourthly, the plaintiffs draw strong corroborative support for their case from a letter dated 13 April 2016 addressed to the Court by Linda Burney (then a senior member of the Legislative Assembly in the NSW Parliament, now a member of the House of Representatives in the Commonwealth Parliament), a well-known, and highly respected member of the Aboriginal community.
Omitting the formal parts, that letter was in the following terms: "Re: Application for letters of administration - Mr Howard Stanley Wilson" I am writing to support the application under Part 4.4 of the Succession Act NSW for the distribution of the estate of Mr Howard Stanley Wilson made by Ms Jill Annette Bott on behalf of her and her sisters, Ms Susan Christine Donovan and Ms Michelle Muriel Gardner. I have personally known the family of the applicants for over 25 years. I also knew their mother, Ms Eunice Valmai Gardner, who is now deceased. I attended her funeral in 1989. I can confirm that the family are an Aboriginal family, who traditionally come from the Gunditjmara nation in Western Victoria. They have lived in Sydney and have been part of the Sydney Aboriginal community for over 50 years. Ms Eunice Gardner moved to Sydney when she was 18 and pregnant with her son, the late Mr Howard Stanley Wilson in the 1950's. This child was subsequently adopted through the Crown Street Women's Hospital in what was a forced adoption. An Aboriginal woman who was single and pregnant at this time, typically either had their child removed by welfare or agreed to adoption. Ms Eunice Gardner died in 1989, never having met her son again, because she was denied access to the adoption records. It was a closed adoption. In 1990 the Adoption law in NSW was amended to allow access and Ms Gardner's children immediately moved to gain access to their brother's adoption records. In 1993 the siblings located and were reunited with their brother, the late Mr Howard Stanley Wilson. Mr Wilson's adopted mother, had died when he was in his early 20's and his adopted father had divorced his mother when he was 8 years old. Mr Wilson had no contact with his adopted father from this time. I understand that he is now also deceased. Jill, Susan and Michelle are the late Mr Wilson's only biological family. They continued to have a close and familial relationship with their brother for over 20 years until his death in June 2013. In my view this application, satisfies the requirements of Part 4.4 of the Succession Act NSW 2006, which provides that the Court may make an order for distribution of an intestate estate to a person claiming to have an entitlement pursuant to the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged. Distributing the estate of Mr Howard Stanley Wilson equally amongst his 3 biological siblings, Ms Jill Annette Bott, Ms Susan Christine Donovan and Ms Michelle Muriel Gardner is entirely in accord with the Indigenous communities [sic] laws, customs and traditions and practices to which they belong."
This letter contains minor factual errors of no consequence in so far as it implicitly dates the divorce of the deceased's adoptive parents in 1964, and explicitly in so far as it asserts that the deceased had no contact with his adoptive father from that time. Nevertheless, it is generally consistent with material facts otherwise established by the evidence.
The expressions of opinion found in the last two paragraphs of the letter, by omission, highlight problems of construction that attend Part 4.4. Ms Burney identifies no content of "the laws, customs, traditions and practices" to which she refers. She says only that a particular scheme for distribution would be "entirely in accord with" such laws, customs, traditions and practices. She offers no express reason for an implied opinion that the scheme for which Parts 4.2 and 4.3 provide is not in accordance with such laws, customs, traditions and practices.
The letter also falls short of a clear identification of an Aboriginal "community or group" to which the deceased can be said to have belonged, the laws, customs, traditions and practices of which must be consulted. On balance, I infer that she intends to identify as a "community or group" the plaintiffs' extended family, with traditional origins in the Gunditjmara nation, living in the Sydney Aboriginal community. Whether that "community or group" had, at any material time, any distinctively, uniquely Aboriginal laws, customs, traditions and practices is not addressed.
The facts of this case do not fit neatly into any paradigm that imagines a distinct Aboriginal community or group notionally governed by "laws, customs, traditions [or] practices" of its own, distinguishable from those of common understanding in the general population of Australia.
The ability of the facts to attract the operation of Part 4.4 derives, not from an Indigenous departure from general community thinking, but (courtesy of the substitutional character of an adoption) a departure of the general scheme for distribution located in Parts 4.2 and 4.3 from a general, perhaps universal understanding of "family".
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.
Part 4.4 does not, in terms, require that there be difference between Indigenous "customary law" and the general scheme of distribution for which Parts 4.2 and 4.3 provide; but, absent such a difference, there is no room for operation of the discretionary power for which Part 4.4 provides.
At the risk of courting controversy, but with an aspiration for clarity of thought, I note that I attribute little, if any, legal significance to Ms Burney's characterisation of the deceased's adoption as "a forced adoption".
I do not doubt that this feature of their family history looms large in the thinking of his Aboriginal family (not limited to the plaintiffs) but, although it has, or may have, deep social implications, nothing substantial of legal significance appears to me to attach to the fact, or quality, of the "consent" in fact formally given to the deceased's adoption by his birth mother. The provisions of Part 4.4 of the Succession Act are available to the plaintiffs irrespective of whether their mother did or did not consent to her son's adoption, and irrespective of whether the consent she gave was in all respects truly voluntary. The operation of Part 4.4 is not dependent on a finding of "forced" adoption. I do not propose to limit its operation by suggesting otherwise.
I do not doubt, as an historical fact, that an Aboriginal woman who was single and pregnant in the mid-1950s would have been likely either to have her child removed from her care by or on behalf of the NSW Minister for Child Welfare and Social Welfare or to be placed under social pressure to consent to an adoption. The same fate can reasonably be supposed to have awaited a single mother of non-Aboriginal descent at that time.
The Court's adoption file records that the application made for the deceased's adoption (under Part XIX of the Child Welfare Act 1939 NSW) was made by a delegate of the Minister. The file contains an instrument of consent dated 23 August 1956 signed by the deceased's birth mother (recording her consent to the child being adopted by "such adopting parents as may be selected and approved by the Director or other approved Officer of the Child Welfare Department") verified by an affidavit sworn the same day by the Justice of the Peace who witnessed her execution of the instrument. That affidavit records the JP's statement: "Previously to being signed the said consent was read over and explain to, and in my belief understood by, the said Eunice Valmai Clark." Both the consent instrument and the affidavit take the form of a pro forma document.
In the instrument of consent, Ms Clark's address was recorded as "Delegate in the State of New South Wales" (a small town in the Snowy Mountains/Monaro region of NSW, not far from the State's border with Victoria), and she is recorded to have "belonged" to "the Church of England religion". The deceased's birth certificate records that his mother was born in Delegate.
Something of the circumstances in which this documentation was prepared might also be inferred from the fact that in each of the instrument of consent and the verifying affidavit the deceased is said to have been "unnamed". He was then aged about six days. His birth certificate (issued by the Registrar General on 31 August 1956) records that the birth was registered on 29 August 1956, on information provided by Ms Clark, at which time the deceased's name (presumably, absent identification of any father) was recorded as "Robert James (Clark)". Between the age of six days and 12, he acquired a name which upon his adoption, on 12 October 1956, was changed.
Whatever the character attributed to the quality of the birth mother's "consent" to her son's adoption, a final indication from the Court file of its uncontroversial character in contemporary society is the fact that the adoption order was made in chambers by the then Chief Judge in Equity, Mr Justice ED Roper. The proceedings were not contested.
According to his birth certificate, the deceased was born at the Queen Victoria Maternity Hospital, Annandale.
I do not doubt that characterisation of the deceased's adoption as "forced" by his birth mother, and within his Aboriginal community, may have added a strong impetus to the plaintiffs' search for their brother, and reinforced their perception of injustice arising from their family's separation from him in earlier days.
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.
The first of these facts, in the context of the case, opens the door to the operation of Part 4.4 by creating a disconnection between the terms of Part 4.3 and the Indigenous community's understanding of family. The second engages the concept of "just and equitable" upon which Part 4.4 turns, by focusing attention on the substance, rather than merely the legal form, of family relationships.
A reunion of an adoptee with his or her birth family would not, of itself, expose his or her adoptive family's inheritance entitlements vis-à-vis his or her estate to substantial risk of a distribution order being made. In these proceedings, a sustained pattern of social engagement over a prolonged period, coupled with a corresponding social disengagement, holds the key to what is just and equitable.
The relative "entitlements" of the parties to participate in distribution of the deceased's intestate estate are to be judged, measure for measure, by reference to their actual, voluntary participation in his life, each according to an implicit, reciprocal understanding of family.

LEGISLATIVE FRAMEWORK

The subject matter, scope and purpose of Part 4.4 of the Succession Act 2006 NSW (to paraphrase Water Conservation and Irrigation Commission (NSW) v Browning (1947) 47 CLR 492 at 505) is best appreciated if read in the context of the Act as a whole.
The long title of the Act is in the following terms: "An Act to restate, with reforms, the law relating to wills in New South Wales; to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person; to make provision for the distribution of intestate estates; and for other purposes."
The Act comprises five chapters, the first and last of which (respectively entitled "Preliminary" and "Miscellaneous") can be passed over as comparatively formal.
Wills. Chapter 2 (comprising sections 4-54) is entitled "Wills". Part 2.1 (sections 4-15) and Part 2.2 Division 3 (sections 27-28) deal with the making, alteration, revocation, revival and rectification of wills. For present purposes, the principal features of these provisions are few but important.
First, they confirm that a person may dispose by will of property to which he or she is entitled at the time of his or her death: section 4(1). Secondly, they prescribe formalities for the making of a valid will: especially, section 6. Thirdly, they empower the Court to make an order to rectify a will to carry out the intentions of a testator if the Court is satisfied that the will does not carry out those intentions because of a clerical error or because the will does not give effect to the testator's instructions: section 27. Fourthly, they allow the Court to dispense with formal requirements for the execution, alteration or revocation of a will in circumstances in which there is a "document" (broadly defined), colloquially described as an "informal will", that purports to state the testamentary intentions of a deceased person and is assessed by the Court as evidencing an intention to operate as a will.
Implicit in these, and all other, provisions of Chapter 2 is an assumption that each individual person possessed of the requisite mental capacity to make a will is entitled to do so and, by that means, to dispose of his or her property as he or she thinks fit on death. However much qualified by other parts of the law of succession which require an individual to accommodate the expectations of others, this assumption justifies characterisation of Australian succession law as based upon "freedom of testamentary disposition".
Statutory Wills. Division 2 of Part 2.2 (sections 18-26) reinforces this foundational concept of "testamentary freedom" by catering for individuals who lack of testamentary capacity. It is entitled "Court authorised wills for persons who do not have testamentary capacity". Such a will is generally known as a "statutory will".
Three features of the law governing a statutory will are presently material. First, a statutory will, duly made, is to be regarded as a valid will of the deceased: section 26. Secondly, the Court cannot authorise the making of a statutory will unless satisfied, inter alia, that the proposed will "is, or is reasonably likely to be, one that would have been made by the [incapable] person if he or she had testamentary capacity": section 22(b). Thirdly, before authorising the making of a statutory will, the court must consider, inter alia, the personal circumstances of the incapable person, taking into account the interests of others who might reasonably be expected to have a claim on his or her bounty: sections 19(2)(h)-(k) and 22(e).
Implicit in the Succession Act is recognition that foundational concepts of "testamentary capacity" and "testamentary freedom" both generally require an individual to consult the interests of those who form part of the community in which he or she lives. The classic test of testamentary capacity, found in Banks v Goodfellow (1870) LR 5 QB 549 at 565, is no less concerned with questions of community. One of the elements of testamentary capacity is said, classically, to be an ability "to comprehend and appreciate the claims to which [the testator] ought to give effect". A preoccupation with what "ought" to be done vis-a-vis community is even more apparent if the classic Banks v Goodfellow test of capacity is read in the context of observations that precede, and follow, it: (1870) LR 5 QB 563 et set.
What emerges from an examination of the law of wills (as an integral part of the law of succession) is that the paradigm for analysis of the law is generally the concept of an autonomous individual living, and dying, in community. The starting point for analysis is generally the perspective of the individual.
Family Provision Relief. The claims of "community" on the paradigm individual become increasingly evident when one moves to consider Chapter 3 (sections 55-100) of the Succession Act, governing applications made to the Court for "family provision" relief out of the estate, or notional estate, of a deceased person.
For present purposes, it is sufficient to note six key features of the Court's family provision jurisdiction.
First, the jurisdiction applies to the estate or notional estate of a deceased person whether or not the deceased died with or without a will: section 59(1)(c).
Secondly, an applicant for relief must fall within a class of persons described as "eligible persons" whose common characteristic, speaking broadly, is membership of the deceased's "community": section 57(1). An eligible person may be a spouse (de jure or de facto, past or present); a child; a dependant who was a grandchild or was, at the time of dependency, a member of the same household as the deceased; or a person with whom the deceased was living in a close personal relationship at the time of death.
Thirdly, certain classes of "eligible person" (a former spouse; a dependant grandchild or member of the same household as the deceased; a person living in a close personal relationship with the deceased at the time of death) must establish "factors warranting" the making of an application in addition to other elements of a claim (section 59(1)(b)), a concept that requires the Court to be satisfied that an applicant should be regarded as an object of testamentary recognition by the deceased (Re Fulop (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241 at 252).
Fourthly, the Court's determination of questions about whether relief can, and should, be made must be made in light of evidence available at the time of decision, necessarily taking into account any post mortem developments: sections 59(1)(c) and 59(2).
Fifthly, the discretionary, normative ("evaluative") character of the Court's decision-making function is bound up in a requirement that the Court consider whether "adequate provision for the proper maintenance, education or advancement in life" of the applicant has been made by the deceased's will or by operation of rules governing an intestacy (section 59(1)(c)) and, if not, a requirement to determine whether, and what, provision "ought" to be made for the applicant's maintenance, education or advancement in life (section 59(2)).
Sixthly, a list of factors specified (in section 60) as potentially relevant to a determination by the Court traverses a variety of matters bearing upon the deceased's personal relationships, including family relationships. One of those matters specifically identified is "any relevant Aboriginal or Torres Strait Islander customary law": section 60(2)(o).
We begin to see, here, not only a broad, flexible view of "family", but also an express accommodation of Indigenous concepts of "community" in dealing with the paradigm individual living, and dying, in community.
Intestacies. Chapter 4 (sections 101-140), entitled "Intestacy", provides a natural contrast with Chapter 2 because it is predicated upon the absence of a will. For present purposes, its subject matter may be divided into three. The first is the provision of general rules governing distribution of an intestate estate: Parts 4.2 and 4.3 (sections 110-132). The second is the provision of a special dispensing power in the administration of an Indigenous person's estate, permitting the Court to authorize a departure from the general rules: Part 4.4 (sections 133-135). The third is a default procedure for disposition of an intestate estate to which no person is entitled; traditionally, such an estate passes to the State bona vacantia: Part 4.5 (sections 136-137).
Part 4.1 (sections 101-109A) entitled "Preliminary" and Part 4.6 (sections 138-140) entitled "Miscellaneous" serve chapter 4 generally, but do not determine its character.
In the Australian legal system, in which every adult, in every section of society, is encouraged to make a will, the statutory intestacy rules for which Chapter 4 provides are generally regarded as a second best option for disposing of a deceased estate. As these proceedings demonstrate, compared with an estate administered in accordance with a will, there are extra transaction costs (including legal expense, inconvenience and delay) in the administration of an intestate estate, at least where a grant of administration is required for the collection or transmission of estate property. In modern Australia, the making of a will is not a mere matter of conventional piety, but an exercise in enlightened self-management.
Historically, statutory intestacy rules have an empirical flavour in so far as they have been changed, over time and space, to accommodate different social imperatives. A devotee of Roman law will go back (at least) to the Novels of the Emperor Justinian, to find a template for the English Statute of Distribution of 1670 (amended by the Statute of Frauds 1677), which for many years informed Anglo-Australian law. Over time, that law that has moved from a perspective that reflected, and favoured, a patriarchal society, with an emphasis on blood lines, to the modern perspective that favours a spouse and a broader range of family relationships.
The general tenor of the general rules of intestacy is that they provide fixed rules, with a specified order of priority in identification of beneficiaries, for distribution of an intestate estate. The concept of a discretionary "distribution order" is deployed in the Succession Act 2006 NSW only as a means of dealing with (a) "multiple spouses" of an intestate and (b) Indigenous estates, in each of which type of case complexity confounding fixed rules may attach to a resolution of competing claims.
Under Parts 4.2 and 4.3, the order of priority ranks a spouse (broadly defined so as to accommodate multiple relationships) first, followed by children, parents, brothers and sisters, grandparents, and aunts and uncles. Each of those categories (as understood by Australians generally) reflects a general community understanding of family relationships, not necessarily the same understanding found in an Indigenous community.
Part 4.5 is instructive because, by defining a default position necessary to give efficacy to the general rules of intestacy, it provides insight into concepts that inform the law of succession generally.
Part 4.5 is in the following terms (with emphasis added): "136 Intestate leaving no persons entitled If an intestate dies leaving no person who is entitled to the intestate estate, the State is entitled to the whole of the intestate estate. 137 State has discretion to make provision out of property to which it becomes entitled (1) If the State is entitled to an intestate estate under this Part, the Minister may, on application in accordance with subsection (3) for a waiver of the State's rights, waive the State's rights in whole or part in favour of: (a) dependants of the intestate, or (b) any persons who have, in the Minister's opinion, a just or moral claim on the intestate, or (c) any organisation or person for whom the intestate might reasonably be expected to have made provision, or (d) the trustees for any person or organisation mentioned in paragraph (a), (b) or (c). (2) The Minister may grant a waiver under this section on conditions the Minister considers appropriate. (3) Application for a waiver of the State's rights to an intestate estate under this Part is to be made in writing to the Crown Solicitor."
Section 137(1) (a)-(c) are particularly instructive in identification of factors that might ordinarily be expected to bear upon the "communal" perspective of an individual living, and dying, in community. Dependency, the existence of a just or moral claim on the intestate and a reasonable expectation of provision are highlighted.
In the ALRC Report commended by the NSW Law Reform Commission for its model legislation, the draft provision closest in character to sections 133-134 of the Succession Act was accompanied by a further draft provision designed to extend eligibility to apply for family provision relief to "a person who is related by blood, kinship or marriage to the deceased person (including a person who is traditionally married to the deceased person), being, a person who...could at the time of the deceased person's death have reasonably expected, in accordance with the customary laws of the Aboriginal community [of which the deceased, at the time of death, was a member], to have received support (including material support) from the deceased person": ALRC, The Recognition of Aboriginal Customary Laws (Report 31, 1986), Volume 2, pages 260-261.
Part 4.4 Distribution Orders. The ideas that govern a distribution of bona vacantia property can reasonably be discerned as ideas that inform the content and operation of the Succession Act generally, including Part 4.4. There is no reason to suppose that Indigenous concepts of "family" are less informed by such ideas than are non-Indigenous concepts of family. They are universal in their connection with "family". They are adaptable to the facts of particular cases.
In terms of social policy, Part 4.4 has its origins in two primary facts. First, for whatever reason (be it cultural, educational, economic or otherwise) Indigenous Australians are perceived to have manifested a greater reluctance to make wills than characteristic of non-Indigenous people in modern Australia. Secondly, culturally, the family relationships of Indigenous Australians have tended, ostensibly, to differ from those of non-Indigenous people. Even allowing for fundamental changes in the concept of "family" consequent upon the sexual revolution of the 1960s and ongoing adjustments to a new reality, non-Indigenous relationships are still generally regarded as having at their core the concept of a "nuclear family", or some variation of it, focussed on linear relationships. Indigenous Australians are generally thought to have a tendency to adhere to collateral relationships in a communal setting.
The work of Professor Prue Vines of the Faculty of Law at the University of New South Wales is instructive. It predates, and influenced law reform thinking leading to, enactment of Part 4.4: see, for example, "Wills as shields and spears: the failure of intestacy law and the need for wills for customary purposes in Australia" (2001) 5 Indigenous Law Bulletin 16; "Consequences of intestacy for indigenous people in Australia: the passing of property and burial rites" (2004) 8 Australian Indigenous Law Reporter 1. It continues with, for example, the Aboriginal Wills Handbook: A Practical Guide to Making Culturally Appropriate Wills for Aboriginal People (second edition, 2015) published by the NSW Trustee.
The following extract from Chapter 3 of the Aboriginal Wills Handbook (omitting footnotes) paints the picture: "This book is the product of many years of both research into the law and consultation with Aboriginal communities. The research demonstrated many of the problems intestacy created for Aboriginal people, in particular the issues of definitions of relationships. The basic intestacy legislation, and the traditional way that wills are interpreted, is based on a view of kinship familiar to the western world. This view emphasises blood relationships over collateral or other types of relationships, and takes a very linear (indeed patrilineal - emphasising the father's line) view of kinship. Indeed, historically, even the relationship of marriage was discounted on inheritance; spouses were not regarded as heirs-at-law, and were insignificant as next-of-kin. It wasn't until modern statutory treatment of inheritance that spouses were put into the dominant position in intestacy law. Blood was so important that a distinction was made between whole-blood and half-blood relatives. Traditionally these could only be whole-blood relatives in relation to land, although this distinction was not made in relation to personal property. This distinction was only recently removed from the NSW intestacy legislation. As Aboriginal people know, the kinship patterns recognised by the common law may not be appropriate for Aboriginal people who may still have different ways of thinking about family. Aboriginal kinship has been described in this way: 'Aboriginal society gives the widest possible recognition to genealogical relationships. Systems of kin classification are governed by three principles: the equivalence of brothers; the bringing of relatives by marriage within the classes of consanguineal relatives; and, although every term has a primary meaning, the non-limitation of range. There is a certain pattern of behaviour for each kind of relative, and the kinship system regulates marriage'. One thing not mentioned here is the importance of adoption and the willingness to recognise kinship without the benefit of a blood relationship among Aboriginal people. Although there are differences amongst kinship groups in how they describe or think of their kinship patterns, and these patterns may be looser or tighter, this description helps to explain the poor fit between the family structure contemplated by the statutory intestacy regimes for non-Aboriginal people and the kinship structures which Aborigines continued to use.…"
This is not an occasion upon which to explore the history of the law of succession in Anglo-Australian law. Suffice to say that the Courts of Common Law, as guardians of a feudal system of land tenure, left succession to personal property in the hands of ecclesiastical courts, whose jurisdiction (with that of the Courts of Common Law and Chancery) can be traced (through the New South Wales Act, 1823 (Imp), the Third Charter of Justice, 1823, the Australian Courts Act, 1828 (Imp), ancillary legislation and section 22 of the Supreme Court Act 1970 NSW) to the jurisdiction presently exercised by this court as "probate jurisdiction".
If one looks for similarities, rather than differences, there might be surprises in store. Australia's Indigenous and non-Indigenous communities still have much to learn from one another. It is not a one way street. Not in either direction. However, the truth remains that there is a widespread perception of difference between the general law governing intestacies in Australia and how Indigenous communities operate.
In a small way, perhaps, the current proceedings may challenge the universality of that perception because, in this case, the deceased's Aboriginal family emphasize their "blood relationship" with him and claim priority over the "collateral relationship" with him enjoyed by his adoptive family.
It is no impediment to the making of a distribution order under Part 4.4 that "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged" might be substantially the same as the understanding of the general Australian community but for an adoption effected under legislation of general application.
In terms of legislative history, Part 4.4 has its origins in Chapter 14 of the NSW Law Reform Commission's Report 116, Uniform Succession Laws: Intestacy (April 2007), which culminated in a recommendation (Recommendation 45) that Division 4A (sections 71-71F) of the Northern Territory's Administration and Probate Act 1969 be adopted as a model, accompanied by a model bill (the South Australian Intestacy Bill 2007) drafted in different terms. The Commission's Report mirrors the Report dated March 2007, entitled Intestacy, made by the National Committee for Uniform Succession Laws to the Standing Committee of the Attorneys General.
The Northern Territory connection (but not reliance on the South Australian Bill) is reflected in the parliamentary debates that led to an enactment of the Succession Amendment (Intestacy) Act 2009 NSW, which became Chapter 4 of the Succession Act 2006 NSW: NSW Parliament, Legislative Assembly Hansard (1 April and 5 May 2009) and Legislative Council Hansard (2 June 2009).
The Second Reading Speech of Attorney General John Hatzistergos, incorporated in the Legislative Council Hansard, includes the following observations about the proposed "Special provisions for Aboriginal people": "The current law in New South Wales makes no specific provision for the operation of the intestacy rules for Aboriginal people. The distribution of property on intestacy is based on a relatively narrow range of family relationships. It may at times be inappropriate to apply the general intestacy rules to members of Aboriginal communities, who may have a broader concept of family relationships. The [Succession Amendment (Intestacy) Bill], in line with [the recommendation of the NSW Law Reform Commission, reflecting a recommendation of the National Committee on Uniform Succession Laws], adopts similar provisions relating to the estates of Aboriginal people who died intestate to those that operate in the Northern Territory. The new provisions provide that the personal representative of an Indigenous estate, or a person claiming to be entitled to share in the intestate estate under the laws, customs, traditions and practices of the community or group to which the intestate belonged, can apply to the Court for a distribution order that takes into account an entitlement under those laws, customs, traditions and practices. If no such application is made, the estate will be distributed according to the general rules."
It might be noted, in passing, that Linda Burney was a member of the State Parliament which, with broad support across party lines, enacted Chapter 4 of the Succession Act.
The only reported case on the Northern Territory equivalent of Part 4.4 appears to be the short judgment, more descriptive than analytical, reported as Application by the Public Trustee of the Northern Territory [2000] NTSC 52. In uncontested proceedings, Martin CJ permitted a small intestate estate to be administered in accordance with the customs and traditions of local Aboriginals, the Jawoyn people. The evidence before the Court included affidavits from "senior members of clan groups making out the Jawoyn people", each asserting that he was "qualified and authorised by Jawoyn tradition to say who is entitled to take an interest in the estate under the customs and traditions of the Jawoyn". The judgment, which acted upon this evidence, was specifically noted by the NSW Law Reform Commission in Report 116 paragraph [14.32].
The following extracts from the NSW Law Reform Commission's Report (with footnotes omitted) provide further context for the Succession Act, Part 4.4: "[14.37] The NT provisions are used infrequently. The Office of the Public Trustee in the NT usually distributes Indigenous estates according to the general scheme of distribution established by statute. In most cases, the families accept such general distributions. Distribution plans are only required when traditional relatives are identified and a family of the intestate cannot agree on an alternative distribution to accommodate them. Distribution plans can also prove useful in cases where the estate would otherwise pass to bona vacantia. Avoidance of bona vacantia was the reason for the distribution plan [ordered in Application by the Public Trustee for the Northern Territory [2000] NTSC 52], as the deceased had no surviving blood relatives. There would appear to be no examples of cases where there have been competing claims for distribution between persons entitled at general law and those entitled to apply for a customary distribution. … [14.55] The National Committee recommends that NT provisions be adopted so that Indigenous kinship structures can be identified where required in order to administer an intestate estate appropriately. [14.56] The National Committee expects that distribution plans will only need to be used in a small number of cases. This has been the experience in the NT where the vast majority of Indigenous intestate estates are administered as they would be for the general community. The distribution plans are only required in exceptional cases where, for example, there are traditional or customary relatives and the family cannot agree to a deed of family arrangement to accommodate them or to avoid an estate passing to bona vacantia. [14.57] It is also expected that the provisions will be used chiefly to identify established kinship structures for the purposes of distribution on intestacy, rather than to identify customary methods for dealing with the property of deceased persons, especially where these may not translate easily into the modern environment. [14.58] Notwithstanding concerns about the recognition of Indigenous customary law, the NT provision appears to provide an appropriate framework for the recognition of the aspects of Indigenous customary law that may be relevant to identifying an intestate's kin in the rare circumstances in which such questions may arise. [14.59] Allowing the Court to extend the time for making applications will ensure that appropriate account can be taken of the extensive periods of mourning in some Indigenous communities… Recommendation 45 A person who claims to be entitled to take an interest in an Indigenous person's intestate estate under the customs and traditions of the community or group to which the Indigenous intestate belonged or a personal representative may apply to the Court for an order for distribution of the estate. A plan of distribution of the estate, prepared in accordance with the traditions of the community or group to which the Indigenous person belonged, must accompany the application. An application must be made within 12 months of the grant of administration. The Court may extend this time subject to any conditions it thinks fit, whether or not the 12 months has expired. No application will be allowed after the intestate estate has been fully distributed according to law. The Court: (a) may order that the intestate estate (or part thereof) be distributed in a specified manner; (b) must, in making an order, take into account the traditions of the community or group to which the in tested belonged and the plan of distribution; (c) must not make any order for distribution unless it is satisfied that it would, in all the circumstances, be just. The Court order may include property which the personal representative distributed within the 12 month period before he or she had notice of any application. The Court will not disturb any distribution if it was made for the purposes of providing for the maintenance, education or advancement in life of a person who was totally or partially dependent on the intestate immediately before his or her death."

ANALYSIS OF THE LEGISLATION

The absence of any case law arising out of contested proceedings may have contributed to an attribution to Part 4.4 of a degree of formality likely to render it of little utility in an urban NSW context, in which (as evidenced by "the Sydney Aboriginal community" identified by Ms Burney) members of the Indigenous community live (as do the plaintiffs) in and as an integral part of the general community, geographically removed from their family's historical place of origin.
An example of this tendency towards undue formality may be seen in the learned paper of Ruth Pollard, Peter Whitehead, Margaret Pringle and Philip Johnson recently published as "Administration of Intestate Estates" (2017) 43 Australian Bar Review 142. Having outlined Part 4.4 of the Succession Act, the authors observe (at page 168): "Preparing a scheme for distribution of the estate will require the assistance of elders of the clan to which the deceased belonged. Contact should be made with the relevant Aboriginal land council to ensure that the necessary information is given by elders or other people the Indigenous community accept as authoritative."
The authors' recommendation of consultation with a Land Council (prudent though it may be) reflects no express requirement of the legislation; but their reference to "community acceptance" provides an important insight that reflects the third element of the definition of "Indigenous person" in section 101, and is implicit in the expression "laws, customs, traditions and practices" found in both section 133 and section 134.
A Purposive Construction Required. Section 33 of the Interpretation Act 1987 NSW mandates that, in the interpretation of legislation, a construction that would promote the purpose or object underlying the legislation (whether or not that purpose or object is expressly stated in the legislation) is to be preferred to a construction that would not promote that purpose or object.
Identification of the purpose or object underlying Part 4.4 of the Succession Act requires that Part 4.4 be viewed not in isolation, but, rather, in the context of the Succession Act as a whole and, especially in the context of Chapter 4 as a whole.
At a high level of abstraction the long title of the Succession Act points the way to identification of the purpose or object of the Act: to restate, with reforms, the law relating to wills; to ensure that adequate provision is made for the members of the family of a deceased person, and others, from the estate of the deceased; and to make provision for the distribution of intestate estates.
A survey of Chapters 2, 3 and 4 of the Act, read as a whole, confirms the currency of a paradigm focus upon succession to property of an individual living, and dying, in community. The law provides a means by which each individual can dispose of his or her property by a will that formally records his or her testamentary intentions. Those intentions are paramount, so much so that the legislation: (a) empowers the Court to make an order for rectification of a will to give effect to testamentary intention; (b) allows effect to be given to an informal will; and (c) authorises the Court to make a will to give effect to the presumed intentions of a person who lacks testamentary capacity. At the same time, claims of community on the bounty of a deceased person, to the extent that they are not given their due in a will or by the rules governing an intestacy, can be accommodated by a discretionary court order for family provision relief, the availability of which is governed by a broad concept of "family" and judicial consideration of the particular circumstances of each individual case. The law of intestacy has also been modified to accommodate contemporary perceptions of "family".
By provision of a general scheme for distribution of intestate estates, Chapter 4 manifests a legislative intention to accommodate changes in social patterns relating to "family" over recent decades, particularly those arising from recognition of de facto relationships and the increasing prevalence of blended, or reconstructed, families arising out of multiple relationships. This is especially evident in special provisions made for "spouses" in Part 4.2 and in the priority given to "spouses" over "eligible relatives" identified in Part 4.3.
The purpose or object of Part 4.4 is (by the means of vesting a discretionary power in the Court) to do what is just and equitable in the particular circumstances of an individual case, to accommodate the fact that, in an Indigenous community (or group), the concept of "family" relationships may differ radically from the general concept of "family" relationships upon which Parts 4.2 and 4.3 are predicated.
An occasion for operation of Part 4.4 is only likely to arise if Indigenous "customary law" (to adopt the generic expression used in paragraph [14.58] of the Law Reform Commission's Report 116 and found in section 60(2)(o)) differs from that enacted in Parts 4.2 and 4.3. That is not every case.
The purpose or object of Chapter 4 (including Part 4.4), as a whole, finds reflection in the criteria (set out in section 137 (1)(a)-(c) in Part 4.5) that govern the discretionary power for a waiver of the State's right to property passing bona vacantia.
The Minister responsible for administration of the Succession Act may waive the State's rights, in whole or part, in favour of: (a) dependants of the intestate; (b) any persons who have, in the Minister's opinion, a just or moral claim on the intestate; or (c) any organisation or person for whom the intestate might reasonably be expected to have made provision.
There, in a nutshell, we have an idea that informs Chapter 4: provision for dependants, recognition of just or moral claims on an intestate, and provision for an organisation or person for whom an intestate might reasonably be expected to have made provision.
The interconnectedness of Part 4.4 and Chapter 3 is illustrated by section 60 (2)(o), the origins of which were the subject of comment by the Court of Appeal in Andrew v Andrew (2012) 81 NSWLR 656 at 665 [37]-[38]. In the determination of an application for family provision relief the Court may have regard to "any relevant Aboriginal or Torres Strait Islander customary law".
Section 60(2)(o) is the product of a recommendation made by the New South Wales Law Reform Commission in Report 110 - Uniform Succession Laws: Family Provision (May 2005), paragraph [2.61].
That report included the following observations: "In adding consideration of 'any relevant Aboriginal or Torres Strait Islander customary law or other customary law', the National Committee 'considered it important to enable the Court to take into account the deceased person's and the applicant's membership of a particular community and the customary practices and customary laws which helped define that community in determining whether the deceased person owed the applicant [relevant] responsibility'. However the National Committee did not consider it appropriate to specify 'what customary practices and customary laws should be taken into account by the court when determining a person's eligibility to apply for family provision from the estate of a deceased member of a particular community', especially bearing in mind that customary practices and laws will vary within and between communities, and not every member of a community will feel bound by its customary practices and laws".
Given the need in each case to focus on all the circumstances of the case, nothing of significance turns upon variations in language between section 60(2)(o) and sections 133-134. A direction that Aboriginal or Torres Strait Islander "customary law" may be relevant to the proper determination of a family provision claim has practical equivalence to the direction to the Court (in section 134(3)(b)) to have regard, upon an application for a distribution order affecting an Indigenous intestate estate, to "the laws, customs, traditions and practices of the Indigenous community or group to which [the] intestate belonged."
Significance of "Just and Equitable" Criterion. Section 134(1) vests in the court a broad discretion to determine, by a distribution order, how an Indigenous intestate estate should be distributed. Although, in formulating a distribution order, the Court must "have regard to" the scheme for distribution submitted by the applicant for an order and the laws, customs traditions and practices of the Indigenous community or group to which the intestate belonged (section 134(3)), the principal direction to (and constraint upon) the Court in exercise of the jurisdiction conferred by section 134 is found in section 134(4): The Court may not make an order under Part 4.4 unless satisfied that the terms of the order are, in all the circumstances, just and equitable.
The expression "just and equitable" is well-known to lawyers, appearing as it does in a variety of legislative contexts, and depending as it does on the context in which it is used and the particular facts of each case in which it is stated as a criterion for action. Coupled with a direction that "all the circumstances" of a case are to be taken into account, it is a classic means of invoking jurisdiction essentially equitable in character.
Jurisdictional Questions. The broad, judicial discretion for which section 134 provides is subject to jurisdictional preconditions (a forensic onus for establishment of which may, generally, be borne by an applicant for a distribution order or, perhaps more accurately, any person who advocates for such an order to be made); namely: 1. There must be an "Indigenous intestate": sections 133(1) and 134(1). Implicitly, this requires a deceased estate, not wholly disposed of by will, of a person who satisfies the definition of "Indigenous person" found in section 101. That definition requires Aboriginal or Torres Strait Islander descent, identification of the person as an Aboriginal person or Torres Strait Islander, and acceptance of the person as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community. 2. There must be an eligible applicant; that is, either "the personal representative of an Indigenous estate" (generally a person holding a grant of probate or letters of administration but, exceptionally, the NSW Trustee by legislative warrant) 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 [the] Indigenous intestate belonged". 3. Implicit in identification of a claimant to a share of an estate is a requirement that his or her claim be bona fide. This flows from the need for an application to be supported by "a scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged" (section 133(2)) and the related direction to the Court that, in formulating a distribution order, it must have regard to the scheme and "the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged" (section 134(3)). 4. An application for a distribution order "must be accompanied by a scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged": sections 133(2) and 134(3).
The Succession Act contains no definition of either the expression "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged" or the expression "scheme for distribution".
The Customary Law Criterion. The expression "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged" appears deliberately not to have been defined. Its breadth embraces almost all, if not all, jurisprudential perspectives of "law", using cumulatively words sometimes deployed in antithesis to one another. The juxtaposition of these potentially conflicting perspectives of "law" suggests that what is described is not a set of positivist rules (such as found in Parts 4.2 and 4.3 of the Succession Act) but a general understanding within a community of rights and obligations of an individual living, and dying, in the community.
The expression "laws, customs, traditions and practices" must be read, in context, as "laws, customs, traditions and practices" relating to distribution of an intestate estate. So, too, the reference to "customary law" in section 60(2)(o) must be read, in context, as a reference to "customary law" bearing upon whether a family provision order can, and should, be made. Neither expression is intended necessarily to refer to a complete system of law with a field of operation beyond the particular subject-matter at hand.
Both expressions, jointly and severally, invoke an understanding of community, and represent an endeavour to encapsulate in legal phraseology social, economic and religious bonds that define, reflect and bind a community of Indigenous people. Both expressions are essentially manifestations of community.
The word "group" found in sections 133 and 134, but absent from the definition of "Indigenous person" in section 101, may refer to a collection of people who are a subset of, or different from, the community, or communities, consulted for the purpose of testing whether a deceased person was an "Indigenous person" within the meaning of the statutory definition.
Use of the expression "community or group" in sections 133 and 134 reinforces an impression that "the laws, customs, traditions and practices" to which the sections refer are "laws, customs, traditions and practices" in the nature of a general, communal understanding rather than a set of positivist rules in a formal system of law.
The word "belong" tends in the same direction, at the same time implicitly reflecting a sense of ownership of the deceased by an Indigenous "community or group" arising from his or her "identification" as an Aboriginal person or Torres Strait Islander and his or her "acceptance" by an Aboriginal or Torres Strait Islander community as such. There is a sense of active, mutual embrace here: the deceased willingly "belongs" to a community, the community willingly "owns" the deceased, on terms commonly assumed.
Expressed in terms of the provisions of the Succession Act which inform a proper construction of the expression "the laws, customs, traditions and practices of the Indigenous community or group to which [the] deceased belonged" (especially, the second and third elements of the definition of "Indigenous person" in section 101 and the criteria set out in section 137(1)(a)-(c) as a default setting), questions that might generally be expected to arise for determination on an application for a distribution order under sections 133-134 are the following, or some variation of them: 1. Was the deceased person an "Indigenous person" as defined by section 101? 2. Has reasonable notice of the proceedings been given to all persons who might reasonably be supposed to have an interest in the determination of the proceedings (bearing in mind the concept of "parties" discussed in Osborne v Smith (1960) 105 CLR 153 at 158-159)? 3. What, if any, evidence is there of acts or omissions, statements or conduct, on the part of the deceased bearing upon his or her testamentary intentions; including, in particular: 1. Whether he or she deliberately died intestate; and 2. Whether (and, if so, how) he or she intended his or her estate to pass, on death, in accordance with an Indigenous understanding of community? 1. Within the understanding of the Indigenous community or group to which he or she belonged: 1. Did the deceased person have any dependants with a claim on his or her bounty for the maintenance, education or advancement in life? 2. Did any person (including but not limited to dependants) have a just or moral claim on the deceased person? 3. Is there any organization or person for whom the deceased person might reasonably be expected to have made provision? 1. Should a distribution order be made modifying the general rules of intestacy (for which Parts 4.2 and 4.3 provide) so as to accommodate manifestations of testamentary intention, identified just or moral claims on the deceased person's estate and reasonable expectations of provision from the estate, viewing this question from the perspective of the deceased person had he or she been required to make a will disposing of his or her estate? 2. If so, are the particular terms of any proposed distribution order just and equitable?
Although I speak here of a distribution order "modifying" the general rules of intestacy, I do not intend to suggest that, in a case to which Part 4.4 applies, the starting point for analysis is a presumption that the general rules apply. The true starting point is a consideration of the personal perspective of the particular, individual intestate whose estate is to be distributed. If a case for a distribution order is not made out, Parts 4.2, 4.3 and 4.5 operate as default provisions, according to the underlying facts, but those Parts do not establish a presumptive rule for the operation of Part 4.4.
In discharge of its judicial function, the Court is not bound simply to accept, or reject, a scheme proposed by a party. The Court's duty is to give such judgment or make such orders as the nature of the case may require: Civil Procedure Act 2005 NSW, section 90; Uniform Civil Procedure Rules 2005 NSW, rule 36.1. Its powers include a power to make orders on terms: Civil Procedure Act 2005, section 86.
Part 4.4 is not a substitute for a will, the making of which is delegated to the Court. Nor is it a means of simply giving effect to testamentary intentions (unconnected with rights and obligations associated with membership of an Indigenous community) without a will. It is a means for effecting a just and equitable distribution of the intestate estate of an Indigenous person who (having lived in community) died in community, leaving dependants; persons who have a just or moral claim on the estate; or others for whom the intestate might reasonably be expected to have made provision.
Part 4.4 is not a rule-based, but a purpose-driven, jurisdiction that involves a rational calculation (not excluding an element of intuitive assessment) of what a particular Indigenous man or woman, living and dying in community, would have done if required to make a will. The Court does not make a will for the deceased, ex post facto, but makes an order for distribution of an estate on a just and equitable basis.
The concept of a "distribution order" appears in the Succession Act, not only in Part 4.4; but also in Part 4.2 (sections 125(1)(b) and 126), as a means of determining the respective shares of an intestate estate to pass to (multiple) "spouses" of the deceased. In common with section 134, section 126 adopts a criterion of "just and equitable". The South Australian Intestacy Bill 2007 appended to the NSW Law Reform Commission's Report 116 as model legislation likewise (at page 268 of the Report) adopted that criterion in its provisions in relation to "multiple spouses".
Even if it could be comprehensively the subject of definition in the abstract, the expression "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged" is too large an expression to be defined exhaustively. Any content given to it must be relative to the particular, personal circumstances of the Indigenous intestate and the community or group to which he or she belonged. This construction is consistent with public policy recognition that "customary practices and laws will vary within and between communities, and not every member of a community will feel bound by its customary practices and laws", to paraphrase the New South Wales Law Reform Commission.
Although Part 4.4 does not use the word "family", the policy concerns that gave rise to its enactment and its legislative purpose or object point towards an Indigenous concept of "family" as an important, if not the decisive, element of any consideration of "the laws, customs, traditions and practices" of any Indigenous community or group. Use of the composite expression "community or group" reinforces that perspective, particularly as it is not an expression the subject of legislative definition and the words "or group" found in sections 133-134 find no place in the definition of "Indigenous person" in section 101.
The reference in section 134(2) to a "distribution that has been, or is to be, used for the maintenance, education or advancement in life of a person who was totally or partially dependent on the intestate immediately before the intestate's death" highlights the Succession Act's emphasis on "family" and "dependency" and the interconnectedness of Chapter 3 (where similar expressions can be found in sections 57 and 59) and Chapter 4 (including section 137).
The empirical character of Part 4.4, which directs attention to all the circumstances of a particular case, does not exclude the possibility that expert evidence might be placed before the Court to assist in identification of "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged". In an appropriate case, such evidence might include evidence from one or more senior members of the intestate's community or group, or evidence prepared or endorsed by a Local Aboriginal Land Council.
However, the jurisdiction of the Court can be invoked, and a distribution order can be made by the Court, without any such evidence. To require such evidence in every case, or even in most cases, might be to stultify the Court's jurisdiction, and to deny to Indigenous families the access to justice intended by enactment of Part 4.4.
In the present case, if not in most or all cases in which the Court's jurisdiction under Part 4.4 is invoked, identification of an intestate as an "Indigenous person" and exposition of his or her family relationships within his or her "Indigenous community or group" is sufficient to address the concept of "the laws, customs, traditions and practices of the Indigenous community or group to which [the] Indigenous intestate belonged" upon which a claimant's standing depends.
The deceased "belonged" to the same community or group - the same family, with the same heritage, located in the same Sydney Aboriginal community - as the plaintiffs and, collectively, they "owned" him as one of their own, as he did them. In their appeal to their biological, and social, sibling relationship with the deceased, the plaintiffs appeal to an understanding of family relations common to all Australians, not displaced by formal law such as found in section 109 of the Succession Act. They appeal to substance over form. Part 4.4 enables them to do so.
In assessing evidence bearing upon the life and attachments of an Indigenous intestate, and what may be just and equitable in distribution of his or her estate, the Court must naturally take into account, as a counsel of caution, any absence of evidence from the deceased person and the comparative ease with which customs, habits, conduct or expressions of intention can be attributed to the absent. This is a counsel of caution routinely noticed in litigation concerning the administration of deceased estates, often by reference to Plunkett v Bull (1915) 19 CLR 544 at 548-549.
Corroborative evidence can be critical, its absence decisive. In these proceedings, the plaintiffs' case is corroborated by documents on the Court's adoption file that testify to the plaintiffs' determined search for their brother; Ms Burney's observations of fact; the deceased's death certificate, recording the first plaintiff as informant, an active participant in the process of death; and the defendant's inability to contradict the plaintiffs' case or to speak of an active personal relationship with the deceased.
A Scheme for Distribution. Part 4.4's use of the expression "a scheme for distribution" is substantially the same as the expression "a plan of distribution" found in Recommendation 45 of the NSW Law Reform Commission's Report 116. The text of the Report uses the word "scheme" interchangeably with the word "plan". The word "scheme" is adapted, perhaps, from the concept of an administrative or cy pres scheme familiar in the administration of trusts. In essence, it involves a definite proposal for administration of the whole estate of the intestate, so far as it passes on intestacy, not limited to a specific claim of "entitlement to share" in the estate. In making a distribution order under section 134 the Court is called upon to contemplate administration of an estate, not merely distribution of part of it.
In performance of its statutory function the Court must remain mindful of the purpose served by an exercise of its probate jurisdiction. Its task is generally to give effect to a deceased person's testamentary intentions (or, in default of any duly expressed testamentary intentions, the scheme of the law governing intestate estates), and to see that beneficiaries get what is due to them without undue delay: In the Goods of William Loveday [1900] P 154 at 157; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192; Estate Kouvakis [2014] NSWSC 786 at [211]. Performance of this task requires the Court to consider, not only the specific terms of a particular claim, but also what is required to facilitate finalisation of an administration of the estate in question, culminating in a distribution of property.
The requirement for a "scheme for distribution" is one of substance, not form. In the present proceedings, the requirement is satisfied by a claim, in an affidavit sworn by the first plaintiff in support of her Summons for Administration, that each of the three plaintiffs is "entitled" to a one third share of the estate of the deceased in accordance with the laws, customs, traditions and practices of the Aboriginal family of which he was a member, who traditionally come from the Gunditjmara nation of western Victoria.
That degree of specificity of the plaintiffs' "scheme for distribution" is sufficient, in the circumstances of the case, to permit the Court to know what relief is sought, and why; to make an appraisal of the plaintiffs' proposal (for an equal distribution of the whole of the deceased's estate between the plaintiffs, to the exclusion of the defendants) as required by section 134; and to formulate a distribution order if satisfied that an order is, in all the circumstances, just and equitable.
The Time Perspective. Sections 125-126 (in Part 4.2), 133-134 (in Part 4.4) and 137 (in Part 4.5) differ from the general intestacy rules in Chapter 4 to the extent that they confer on a decision-maker (the Court or the Minister) a broad discretionary power, necessarily exercised after the death of an intestate person, directed to distribution of an estate rather than (as in most of Part 4.2 and in Part 4.3) upon fixed entitlements of specified classes of persons.
Section 134(4) in Part 4.4 explicitly, and sections 137(1) and 137(2) in Part 4.5 implicitly, require or allow the decision-maker to take into account all the circumstances of the case known at the time of decision. The decision-maker is not artificially constrained to act only upon facts known to the deceased or ascertainable at or before the time of death, or to ignore post-mortem developments. In this sense, the time perspective mandated by sections 59(1)(c) and 59(2), in relation to determination of a family provision claim, also governs decision making under Parts 4.4 and 4.5.
Procedurally, there would be no impediment to an application for a distribution order (under Part 4.4) and an application for family provision relief (under Chapter 3) being heard together, with evidence on one application admitted as evidence on the other so far as relevant, despite a different focus in each case. Procedurally, the two types of application are not incompatible. In some scenarios, they may be complementary.
The "just and equitable" criterion for which section 134(4) provides is not conceptually far removed from the standard of a "just and wise" testator established by The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20 in connection with applications for family provision relief.
The requirements that the Court have regard to contemporary "community standards" in the determination of family provision proceedings (confirmed by Andrew v Andrew (2012) 81 NSWLR 656 at 661), and that regard be had to any relevant Aboriginal or Torres Strait Islander customary law (stipulated by section 60(2)(o)), are not conceptually far removed from the requirement in section 134(3)(b) that the Court have regard to "the laws, customs, traditions and practices of the Indigenous community or group to which [an] intestate belonged". An Indigenous community is no less amenable to change than the general community.
In a relational sense, both types of case involve an element of "moral" judgement, although judges regularly caution against capture by expressions such as "moral duty" capable of deflecting attention from statutory criteria for decision-making. The Court's focus is on relationships between an individual deceased person and his or her community rather than the propriety or otherwise of personal conduct.
An application for a distribution order is focused upon what the particular deceased person would have done, in his or her (Indigenous) communal setting, without the emphasis found in family provision proceedings on a general community assessment of what he or she ought to have done.

ATTRIBUTION OF A PRESUMED INTENTION TO AN INTESTATE

The following observations of the NSW Law Reform Commission, in Report 116, about the law of intestacy generally (omitting footnotes) bear directly upon the function of the Court under Part 4.4: "AIM OF INTESTACY RULES [1.23] The rules of distribution on intestacy are, at the most general level, the community's view of what should be done with the estate of a person who has died intestate. The parliaments of the various Australian jurisdictions, as representatives of their communities, have established and amended the rules from time to time … Carrying out the presumed intentions of the intestate [1.25] One of the more widely acknowledged aims of intestacy rules is to produce the same result as would have been achieved had the intestate had the foresight, the opportunity, the inclination or the ability to produce a will. … Establishing the presumed intention [1.29] How one establishes what the intestate might have intended is sometimes fraught with difficulty. There has been some debate about whether the distribution patterns established by those who have actually executed wills should be used to shape the rules for distribution upon intestacy. … [1.30] It is also possible that at least some of the people who do not write wills are satisfied with the distribution regime established by the current intestacy rules. … [1.31] The rules of intestacy should not be viewed as removing the need for wills, and they should not be seen to be lessening the importance of making a valid will. Simplicity, clarity and certainty [1.32] Some law reform agencies have stated that one of their principal aims is to make the rules of distribution simple, clear and certain. This is seen as being beneficial both to lawyers and to members of the public who have to administer the rules. [1.33] The Law Commission of England and Wales recognised that the rules of intestacy: 'should be certain, clear and simple both to understand and to operate, They do not lay down absolute entitlements, because the deceased is always free to make a will leaving his property as he chooses. They operate as a safety net for those who, for one reason or another, have not done this. If the rules can conform to what most people think should happen, so much the better. If they are simple and easy to understand, the more likely it is that people who want their property to go elsewhere will make a will. It is also important to enable estates to be administered quickly and cheaply. The rules should be such that an ordinary layman can easily interpret them and consequently administer them. Also the rules should make it unnecessary for an administrator to have to determine complex or debatable questions of fact.' [1.34] While it is desirable to have rules that are as simple as possible, simple rules may also fail to deal with some common circumstances that arise in intestate estates. An appropriate balance is required.… Provision for deserving family members [1.40] Provision for deserving family members is probably the most difficult category to deal with [in the context of drafting rules of intestacy] … [1.43] The question of desert or entitlement of any potential beneficiary is obviously best dealt with by executing a will that distributes an estate taking into account such factors. If the deceased has not written a will, such questions may be dealt with by way of a claim for family provision. In some cases, is also possible that the beneficiaries may agree amongst themselves to a different distribution in order to achieve a more 'just' distribution. Such deeds of variation will, however, be difficult to finalise where there are family tensions or beneficiaries who are under 18. Interaction with family provision regimes [1.44] There is an important interrelationship between intestacy regimes and family provision regimes. Family provision regimes are important for dealing with individual cases that involve questions about such criteria as need and desert. [1.45] In general, it would be undesirable to use intestacy rules to achieve the aims of family provision. However, by the same token, an intestacy regime that encouraged the making of family provision claims would not be ideal. The English Law Commission considered that it would seem 'undesirable' to change the rules of distribution in such a way as to give rise to a greater number of applications for family provision."
These observations are pertinent to an application for a distribution order under Part 4.4 even though the determination of such an application involves the making of a discretionary decision guided by consideration of what is "just and equitable".

THE ESSENTIAL QUESTION FOR DETERMINATION IN THIS CASE

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?

DETERMINATION

The plaintiffs have established the jurisdictional grounds necessary to enliven the discretionary jurisdiction of the Court under section 134 of the Succession Act. The deceased was an "Indigenous person" within the meaning of section 101: he was of Aboriginal descent, he identified as an Aboriginal person, and he was accepted as an Aboriginal person by an Aboriginal community (based in Sydney, but with a heritage that included that of the Gunditjmara nation) personified by the plaintiffs and their families. It is common ground that he died wholly intestate. The plaintiffs have made a bona fide claim to be entitled to the whole of his intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which he belonged. Their application for distribution order was accompanied by a scheme for distribution of the estate in accordance with those laws, customs, traditions and practices.
Their application was made within the time period prescribed by section 133. No part of the estate has been distributed.
Although the deceased's estate has yet to be collected, it has been fully identified and the only impediment to its collection is the absence of a grant of administration. As the deceased apparently died without owing any debts, his estate will be ready for distribution shortly after its collection.
In exercising the discretion for which section 134 provides, I have regard to the circumstances in which 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.
I am satisfied that there are 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 made by the plaintiffs as his closest family members. They have that status whether "family" is defined by blood line, cultural affinity or social interaction. 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.
The injunction in section 109 that the family relationships of an adopted person are to be determined by reference to his or her adoptive parents, and that family relationships that exist only as a matter of biological fact are to be ignored, does not stand in the way of a distribution order made under Part 4.4. Section 135 provides that a distribution order made under Part 4.4 operates (subject to its terms) to the exclusion of all other provisions of the Succession Act governing the distribution of an intestate estate.
There is no foundation in the evidence for a finding that the deceased refrained from making a will with the deliberate intention that his intestate estate be distributed according to the general rules on intestacy for which (in his case, as an unpartnered bachelor) Part 4.3 provides. The attribution to him of a presumed testamentary intention is not impeded by any such evidence.
In my assessment, the strong probability is that, if prevailed upon to make a will, the deceased would have provided for substantially the whole of his estate to pass to the plaintiffs.
I say "substantially" because I do not exclude the possibility that the deceased would have thought fit to make some small provision for the defendants in recognition of their shared (albeit distant) experience of family life and (albeit through the blood line of his adoptive father, not his adoptive mother, to whom he was closest) in recognition of their family relationship with him.
In my assessment, a distribution order that did not make, at least nominal provision for the defendants in recognition of their relationship with the deceased would not be "just and equitable" in all the circumstances of the case. They are entitled to recognition as part of the deceased's family, albeit only remotely so.
On the other hand, subject to some small provision being made for the defendants, I am quite satisfied that it would be just and equitable to make a distribution order directing that the balance of the deceased's estate be distributed to the plaintiffs as tenants in common in equal shares.
Having regard to the size and composition of the deceased's estate (including his superannuation and insurance entitlements), the appropriate quantum of provision to be made for each of the defendants is $4,000, representing a charge of $8,000 in total on the estate.
The fact that the second defendant is currently afflicted by a serious illness is not, of itself, sufficient to influence the judgement that has to be made under section 134 in circumstances in which, to all intents and purposes, she was not a member of the same community or group as the deceased at any time during the last three decades of his life. Neither he nor his estate could be said to be under any obligation (grounded in justice, morality or reasonable expectation) to make provision for her even if, as I accept, he may have been disposed (through generosity, pity or otherwise) to do so.

ORDERS

Accordingly, I make the following orders: 1. ORDER, pursuant to section 134 of the Succession Act 2006 NSW, that the estate of Howard Stanley Wilson, late of Panania, who died at Bankstown on 26 June 2013, be distributed in accordance with the following terms: 1. a legacy of $4,000 is to be paid to the first defendant. 2. a legacy of $4,000 is to be paid to the second defendant. 3. the residue of the deceased's estate is to be paid to the plaintiffs as tenants in common in equal shares. 1. ORDER, subject to further order, that no interest accrue on the defendants' legacies if paid within six months of the making of these orders, after and from which time the unpaid balance of each legacy is to accrue interest at the rate for which section 84A of the Probate and Administration Act 1898 NSW provides. 2. ORDER that letters of administration of the estate of the deceased be granted to the first plaintiff. 3. ORDER that the proceedings be referred to the Registrar for completion of the grant. 4. ORDER that the grant the issue forthwith. 5. ORDER that any requirement for further compliance with the Probate Rules, and any requirement for an administration bond, be dispensed with. 6. RESERVE liberty to apply for an order that Order 2 be discharged or varied in the event of delays incurred in collection of the deceased's estate. 7. ORDER that each party pay or bear her own costs of the proceedings. 8. ORDER that exhibits and subpoenaed material may be returned forthwith, any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. 9. ORDER that these orders be entered forthwith.

POST SCRIPT

Part 4.4 of the Succession Act was enacted as a law reform exercise designed to accommodate Australia's Indigenous communities insofar as their understanding of "family" may differ from the general rules of intestacy for which Parts 4.2 and 4.3 provide.
In due course, consideration might usefully be given by Parliament to an extension of Part 4.4's basic provisions to the general population. This could be done by: (a) an adaptation of the second and third elements of the definition of "Indigenous person" in section 101, requiring a community connection between a claimant and the deceased; and (b) conferral on the Court of a discretionary power to vary the general rules of intestacy, informed by criteria similar to those found in section 137(1)(a)-(c), constrained by a just and equitable criterion.
Alternatively, a dispensing power might be conferred on the Court, generally, in terms similar to the power conferred on the Minister by section 137,
Any perceived necessity for legislative change of this character might be thought likely to arise from a need for flexibility in dealing, inter alia, with: (a) increasingly complex family relationships, unattended by the formality of marriage or a legally recognised "de facto relationship", falling short of an available family provision claim; or (b) family relationships, in fact and law, consequent upon adoption in an era of open adoptions.
Concerns about flood-gates to litigation being opened by legislative change might be addressed (for example) by a requirement for proof of "factors warranting" of the type found in section 59(1)(b); a requirement of leave to proceed with an application for relief; and/or special costs rules.

Amendments 23 January 2017 - [18] - typographical amendment [64] - typographical amendment [82] - typographical amendment [112] - typographical amendment [119] - typographical amendment [130] - typographical amendment [150] - typographical amendment [152] - typographical amendment [156] - typographical amendment [160] - typographical amendment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2017

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