28 May 2012

Wills and Indigenous People

The concise 'Making Wills for Aboriginal People in NSW' by Prue Vines in 49(8) Law Society Journal of NSW (2011) argues that
Aboriginal people in NSW have even more need to make wills than non-Aboriginal people. A burgeoning middle class continues to have traditional family and customary law obligations, while taking on mainstream property and obligations. The standard intestacy regime is inappropriate including because it uses an inappropriate idea of family and the high rate of burial disputes involving Aboriginal people means the role of executor is even more important than usual. A will can also be used to protect certain aspects of customary law. The article considers the issues arising in drafting the most culturally appropriate and effective wills.
Vines notes that
Aboriginal people, even those who live in cities and live urban lives, often continue to have customary law obligations which may need to be protected. Intestacy cannot deal adequately with all customary law obligations, possibly even where Part 4 of the Succession Act 2006 (NSW) is used. Many of these will be obligations arising out of kinship, which we have already discussed. But there may be other customary law obligations which might be protected by wills, in particular secret knowledge which should be passed on. Normally this should happen inter vivos, but if it does not happen in life, a will might be drafted to operate as a vehicle in equity which will both protect and keep secret the knowledge itself. This might be done by using equitable doctrines including confidentiality and secret and half‐secret trusts. The question of whether such knowledge can be regarded as property may be answered by the argument that equity retains flexibility so that it can accommodate a wider view of property than pertains at common law. 
Aboriginal artwork is often a significant issue for wills to deal with, and the issue may go further than it would for a non‐Aboriginal person’s artwork. For example, a person may have done an artwork which is based on ritual knowledge. The artwork itself may be copyright and therefore be an item of property which the common law recognises and which can be passed on to other people. That raises no great difficulty, except that the fact that it is based on ritual knowledge may mean that it is important to place conditions on the gift in the will. There may be some question of how the artist was supposed to use this knowledge. If the ritual knowledge is something which the artist is supposed to pass on then a will may be helpful. The ritual knowledge itself cannot be passed on as copyright because copyright protects the expression of an idea rather than the idea itself. It may be possible to do this by means of a secret or half‐secret trust or by using some aspect of confidentiality to pass it on by will. Thus, carefully drafted wills can operate to ensure that customary law obligations spelt out in the will (or even as half‐secret trusts to ensure confidentiality) will be recognised and given legal force by the common law.