Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 28 April 2018.
Michael, an indigenous Australian, died without a will.
Michael had very few physical assets, but searches revealed that he had funds in superannuation and that a substantial death benefit was payable.
In order to deal with the superannuation, a grant of letters of administration was required by the fund.
When Michael died, he did not leave a surviving spouse, he had no children and no parents. He left no siblings, no nieces or nephews and no aunts or uncles.
In the absence of a “next of kin”, the State is entitled to the whole of the estate.
However, Christopher had been cared for, and lived with Michael for most of his life. As far as the community was concerned, Michael and Christopher were akin to “brothers”.
Michael left no other dependents.
Christopher consulted a solicitor who advised him that there are special provisions that apply to indigenous persons that allow him to claim under the customs and traditions of the indigenous community.
Three Community elders gave affidavit evidence that it would be expected for Christopher to inherit Michael’s estate in the absence of any other family.
Christopher gave evidence that searches to locate a will were unsuccessful, which included searching Michael’s personal effects and making of enquiries with solicitors in the local area, Michael’s bank and the NSW Trustee & Guardian.
The court ultimately ordered that Christopher was entitled to the whole of Michael’s estate by virtue of the customs and traditions of his indigenous community and that it was just and equitable to grant Christopher the right to administer Michael’s estate on the basis that he was the sole beneficiary.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
