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Indigenous people and the Importance of making a Will

Wills are all about planning and handing on prosperity to the next generation. Although the thought of death can be frightening, it is important that individuals, especially business owners, express their wishes regarding their belongings and other arrangements after their death using a will.

What is a Will?

A will is a legal document that clearly sets out the wishes of an individual in terms of the distribution of their belongings (this is called an ‘estate’), the guardianship of young children and any other arrangements, after their death.

Generally, a will allows you to express your wishes regarding your assets after your death, handled by the chosen executor. In a will, an individual can appoint an executor, who is then the person responsible for carrying out the terms of the will.

Indigenous people and the problem of intestacy

Historically, wills are not as prevalent among Indigenous business owners as their non-Indigenous counterparts. We have noticed that very few Indigenous people have a will, which can lead to intestacy.

What is intestacy?

Intestacy means dying without a valid will. Intestacy triggers government red tape which requires your estate to be distributed in line with intestacy laws. This means that a government official can step in and take control of the distribution of assets. As a result, the wishes of the individual are not usually considered in this process. This can lead to disputes, loss of tradition and knowledge, or things not going to who you want.

In some states, however, there are exceptions to the general rules of intestacy to allow consideration of Indigenous customary laws. For example, in New South Wales, section 133 of Succession Act 2006 (NSW) allows a person to claim an entitlement in an intestate’s estate under the laws, customs, traditions and practices of the Indigenous community to which the deceased person belonged. A recent case in the NSW Supreme Court – Estate of Mark Edward Tighe [2018] NSWSC 163, recognised kinship relationships in order to transfer Mr Tighe’s, an Indigenous intestate, estate to the ‘brother’ who cared for him but who was not a blood relative. If not for this provision, the estate would have gone to the NSW government as Mr Tighe had no blood relatives.

Why it is important for Indigenous business owners to have a will?

Wills are important for Indigenous business owners as they can be used to:

  • Make sure the right person inherits and your wishes are followed (to the best of the executor’s abilities)

  • Prevent and resolve disputes between business partners

  • Pass on knowledge and tradition - and copyright and other intellectual property

  • Ensure your business can operate after your death (if that’s what you want.)

Indigenous business owners should also ensure they have wills to enable gifts and property to pass on to family without government intervention that would occur if you died without a will. Further, a will can direct ownership of your company shares and intellectual property.

Wills are about prosperity for future generations

Wills are about building wealth and wellbeing. They transfer prosperity for future generations and create a mindset of building on wealth and passing on assets. They can also direct cultural responsibilities according to customary laws and protocols.

Legal requirements for a valid wills:

For a will to be valid, it must comply with the formal requirements of legislation of the appropriate state, including:

  • In writing – Will should be written. Drafting is key for precise wording.

  • Signing of the will – Will must be signed in the presence of two adult witnesses, who must be independent of the will, who will then sign themselves.

Look after your Will

Once you have drafted your Will, make sure you keep a copy in safe storage, notifying your nominated executor of where to find it. Or better still, give them a copy to hold.

How can we help you?

Terri Janke & Company Lawyers can assist by:

  • preparing and witnessing wills;

  • advising on issues possible claimants that might contest the will seeking family provisions

  • Estate planning generally.

Our Wills specialist, Stephen Varvaressos, Senior Solicitor, with Terri Janke and Company, has over 20 years’ experience in advising people about wills, and can give you peace of mind over this daunting, but necessary, process.

Important notice

This article provides general advice only for information purposes. If you want advice about your particular matter, please contact us.

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