Separation, re-partnering and intestacy


Posted By and on 15/06/21 at 2:54 PM

Intestate estate where deceased twice ‘tribally married’ – Re Estate of Bunduck [2021] NTSC 12 (unreported BC202103987)

The deceased was an Indigenous man who died intestate. He was survived by his wife and four adult children. He had married his wife in a tribal ceremony.

The Northern Territory intestacy provisions require that where the value of an estate does not exceed the prescribed amount of $350,000, the spouse is entitled to the entire estate.

However, after an application for letters of administration was filed on behalf of the wife, it came to light that in fact the deceased was twice ‘tribally married’. He had previously tribally married his children’s mother.

Northern Territory provisions regarding intestacy

Where a deceased leaves more than one spouse, the Northern Territory intestacy provisions require that the estate “shall be divided into a number of parts equal to the number of spouses … and each spouse … shall be entitled to one of those parts”. In essence, the estate is divided equally between those spouses.

Even though the deceased had not lived with his first wife for seven years prior to his death, and had lived with his second wife as her husband for this time, it was conceded by the second wife and held that both wives qualified as a spouse under the Northern Territory intestacy provisions as the marriages were held according to the customs and traditions of the relevant Indigenous community. Letters of administration were granted to the second wife but the net estate, which was valued at just over $200,000, was ordered to be distributed equally between the two wives.

The position in Victoria

As Victoria has similar intestacy provisions in relation to multiple spouses, it is really important that you consider your estate planning and put in place an appropriate Will to avoid situations such as this. By way of example, a spouse to whom you remain legally married but may have been separated for a considerable time would still be classified as a spouse under the intestacy provisions meaning your new partner may be required to share your estate with your former spouse and, depending on the value of your estate, your children may miss out altogether. Whilst there is an ability to come to what is called a “distribution agreement” or seek “distribution orders”, it is always preferable to avoid your family becoming embroiled in litigation if at all possible.

If you have any questions in relation to these matters, or require assistance with your estate planning, please don’t hesitate to contact us.

KHQ Lawyers - Rachael Hocking

Rachael Hocking Principal Solicitor

Rachael is a highly experienced Wills & Estates lawyer. She is an Accredited Specialist in Wills & Estates with the Law Institute of Victoria, and is also a full member of the Society of Trust... Read More

Ines Kallweit Principal Solicitor & Notary Public

Ines Kallweit leads our Wills & Estates team.  She is an Accredited Specialist in Wills & Estates (with the Law Institute of Victoria), a member of the Society of Trust and Estates Practitioners,... Read More