Burial rites

By Amy McQuire, July 2013, Tracker Magazine.

NATIONAL: Writing a will can help save trauma and heartache for your loved ones.


Talk to any community and they’ll lament the loss of their old and, regrettably, their young.

Funerals are a traumatic time for any person – black or white – but they can become even more traumatic when the deceased hasn’t left a will.

According to University of New South Wales’ professor Prue Vines, who has researched the low rates of will making amongst Aboriginal communities for years, only about 2 percent of Aboriginal people leave behind a will.

That’s compared to 70 percent across the general community.

The effects of passing without leaving one can be long reaching and devastating for a family, and yet it is rarely spoken about.

“It’s about death, and most people don’t want to think about death if they don’t have to,” Prof Vines told Tracker.

“It’s frightening and people can get a bit superstitious. Nearly everybody in the world is afraid of death….

“One of the things that was interesting when I went out to various communities was that a lot of people said they didn’t want to talk about death or think about it. Men seemed to be more likely to say this while it would be the women who were more likely to say they know they need to deal with it…

“There’s also the fact that Aboriginal communities have such terrible experiences when someone has died. When there’s been a dispute about the burial of the body or disputes about who gets what.”

Prof Vines says that in her experience, almost every community had a bad experience with disputes following the death of their loved ones.

“One of the things that amazed me when visiting communities was that every single one of them had some awful dispute about a burial or another issue, and lots of cases had been to court.

“That’s really expensive and terribly traumatic. It’s so much better if you can set things up in advance, make sure the plans are clear and appoint someone to be executor.”
Prof Vines said that in many cases, disputes had dragged on for years.

“Sometimes disputes were 25 years old,” she says.

Disputes can be even worse in Aboriginal communities, where there are different kinship systems to western society and where there are often disputes about where to bury the body – whether it be on country or another place.

There are also issues around customary law, Prof Vines says.

“When I began this I knew there were problems about how inheritance works, but I didn’t realise that it went so deeply into the hearts of communities and lasted so long. It was usually the women, and the women elders, who were really interested in not having those kinds of disputes.”

That’s why Prof Vines has authored a guide for legal services and law firms to use when dealing with Aboriginal clients who wish to make a will. It’s a guide completed in conjunction with the University of New South Wales and published by the NSW Trustee and Guardian.

It’s the culmination of decades of work and is aimed at breaking the taboo and reducing the rates of intestacy (dying without a will).

Taboos that prevent Aboriginal people from making wills include misconceptions about what could be inherited.

“We did find a lot of people in Aboriginal communities thought they had to own a house, and that’s obviously not true,” Prof Vines says.

“Making that clear was very important. And some thought you inherited debts along with whatever you got which isn’t true. So that obviously wasn’t very attractive.
“So people didn’t understand how it worked.

“Another thing was people were concerned that they didn’t have much money and that you would have to go to a solicitor.

“The Aboriginal legal service is not funded to draft wills and so on…

“This book is really a response to that.”

Prof Vines says the idea of the book is that it can be picked up by an Aboriginal person or be used by a lawyer or someone at an Aboriginal legal service to draft a culturally appropriate will.

“Getting a will drafted is not as expensive as what most people think. They can also use the public trustee and they will draft wills for free.”

She says it would end up being more expensive if your family had to take disputes to court.

Currently there is inheritance legislation in New South Wales, which says in the case someone dies without a will, which gives primacy to the spouse. If there is no spouse the property will go to the parents, the to siblings, and then to grandparents, aunts and uncles and first cousins.

That’s obviously complicated for Aboriginal people, who often have views of kinship that are wider than “bloodlines”.

“This may mean for Aboriginal people that the wrong person could inherit and significant others may be excluded, adding to the cultural and emotional hurt felt at that time,” Prof Vines says.

Recently legislation was introduced in the state that allows Aboriginal people to provide a special plan. But Prof Vines writes in the book that this “remains a complicated and relatively difficult process”.

“Making a will is simpler and easier because an individual can, preferably with the help of a lawyer, make a document which fits the individual’s circumstances and gives effect to their own wishes.”

* The book is available for download for free from http://www.tag.nsw.gov.au/wills-for-aboriginal-people.html as well as from NSW Trustee & Guardian branches around NSW.


Ruth died suddenly, without having made a will.

One of her sons, Bill lived in Sydney and wanted her to be buried where he could visit her grave. The other son, Mark wanted her to be buried in her traditional country.

Within the community, people began to side with Bill or Mark.

The dispute went on and on while Ruth’s body waited. After 5 days, Mark took Bill to court to get a decision about burial.

This was hard to organise and it was expensive.

Unfortunately the judge said that both sons would be equally entitled to letters of administration under the intestacy rules.

Eventually, she decided that the body was in the morgue in Sydney so it should be buried where the least travel was involved.

The community was upset and Bill became estranged from them.

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