Estates and property of Aboriginal persons

Contributed by Maree van der Kwast and current to 1 September 2005

TESTATE ESTATES

If the deceased person died leaving a valid will, the estate will be distributed according to the terms of the will.

INTESTATE ESTATES

Section 35 of the Aboriginal Affairs Planning Authority Act 1972 (WA) provides that the Public Trustee shall administer the estate of an intestate Aboriginal person. Such a person is described in section 33 as “a person of Aboriginal descent only if he is also of the full blood descended from the original inhabitants of Australia or more than one fourth of the full blood”. However, when the Aboriginal Legal Service challenged the WA Government about the discriminatory nature of this legislation, the Public Trustee indicated that he would not object to the next-of-kin of an intestate Aboriginal person seeking Letters of Administration pending the amendment of the legislation.

Distribution of intestate estates

As far as it is practicable the estate will be distributed according to the Administration Act and, if persons of such relationship cannot be ascertained, then, according to Aboriginal customary law as it applied to the deceased at the time of death.

When no one is entitled to the property of the deceased under the regulations and no valid claim is made to the balance of the estate within two years after the death of the deceased, the Governor may on application order the balance to be distributed beneficially among any persons having a moral claim to the balance of the estate. If there are no claimants the Public Trustee shall authorise that the property of the deceased be placed in trust to be used for the benefit of persons of Aboriginal descent.

A certificate from the Director-General of the Department of Community Services shall be evidence of a person’s right to the estate of the deceased person of Aboriginal descent, or shall be evidence that no person is entitled.