Succession and Indigenous Australians : addressing Indigenous customary law notions of 'property' and 'kinship' in a succession law context

Xynas, Lidia 2011, Succession and Indigenous Australians : addressing Indigenous customary law notions of 'property' and 'kinship' in a succession law context, Australian property law journal, vol. 19, no. 2, pp. 199-221.

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Title Succession and Indigenous Australians : addressing Indigenous customary law notions of 'property' and 'kinship' in a succession law context
Author(s) Xynas, Lidia
Journal name Australian property law journal
Volume number 19
Issue number 2
Start page 199
End page 221
Total pages 23
Publisher Lexis Nexis
Place of publication Chatswood, N.S.W.
Publication date 2011-03
ISSN 1038-5959
Summary The purpose of this article is to critically evaluate the existing capacity of Indigenous people to exercise succession rights against their estate. This article begins with a discussion of the sources of the general succession laws in Australia, noting that they have derived from UK law, where the common law notions of property, property rights and family, including the expectational right to succeed to property, are all important factors. These common law notions do not easily fit within the spectrum of Indigenous customary law. Generally, many Indigenous Australians will die without executing a valid will (ie, they die intestate) and it is here that this article undertakes an examination of the general intestacy laws in all Australian jurisdictions noting the inadequacy of the provisions to recognise Indigenous persons’ spiritual and cultural obligations to property, land or otherwise, together with a failure to distinguish extended Indigenous kinship relationships under Indigenous customary law. It is argued that Indigenous people who die intestate should be supported by a flexible and adaptive intestacy framework, responsive to the full customary and cultural responsibilities of the deceased, thus promoting an organic and developmental approach to succession entitlements.
Language eng
Field of Research 180124 Property Law (excl Intellectual Property Law)
Socio Economic Objective 970118 Expanding Knowledge in Law and Legal Studies
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Persistent URL http://hdl.handle.net/10536/DRO/DU:30036050

Document type: Journal Article
Collections: Faculty of Business and Law
School of Law
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