Aboriginal Affairs Planning Authority Act Regulations 1972


17/Oct/2003 - Current (at 31 Dec 2005)
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    9. Estates of deceased persons of Aboriginal descent

    (1) Where a person of Aboriginal descent dies or has died intestate leaving real or personal estate and in accordance with the provisions of section 35 of the Act the estate is vested in the Public Trustee under the Public Trustee Act 1941, if

    (a) after payment of the just debts of the deceased there is an unexpended balance of the estate remaining in the hands of the Public Trustee; and

    (b) the deceased had not married in accordance with the laws relating to marriage,

    the persons entitled, within the meaning and for the purposes of subsection (1) of that section, to succeed to the balance of the estate of the deceased and the order in which they are so entitled shall be as follows:

    (i) Where the deceased was a male and has left him surviving any female person of Aboriginal descent who according to the social structure of the tribe to which he belonged was his wife, and has also left him surviving a child born of the union of the deceased with that wife, that wife, and that child, shall be entitled to such balance of the estate, and if there are more than one such wife or children they shall all be entitled in equal shares.

    (ii) Where the deceased was a female, and has left her surviving a male person of Aboriginal descent, who, according to the social structure of the tribe to which she belonged, was her husband whether or not she has also left her surviving any child born of her union with that husband, the husband shall be entitled to the whole of the balance of the estate.

    (iii) Where the deceased was a male, and has not left him surviving any female person of Aboriginal descent who, according to the social structure of the tribe to which he belonged, was his wife, but has left him surviving a child born of his union with a female person of Aboriginal descent who, according to the social structure of the tribe to which he belonged, was his wife or were his wives, that child (if there be only one) shall be entitled to the whole of the balance of the estate, and those children (if there be more than one such child) shall be entitled to the balance of the estate in equal shares.

    (iv) Where the deceased was a female and has not left her surviving any male person of Aboriginal descent who, according to the social structure of the tribe to which she belonged, was her husband, but has left her surviving a child born of her union with a male person of Aboriginal descent who, according to the social structure of the tribe to which she belonged, was her husband, that child (if there be only one) shall be entitled to the whole of the balance of the estate, and those children (if there be more than one such child) shall be entitled to the balance of the estate in equal shares.

    (v) Where the deceased (whether a male or a female) has not left him or her surviving any of the persons mentioned in any of subparagraph (i), (ii), (iii) or (iv), but has left him or her surviving a male person of Aboriginal descent who according to the social structure of the tribe to which he or she belonged was his or her father by reason of a tribal marriage, that father shall be entitled to the whole of the balance of the estate.

    (vi) Where the deceased (whether a male or female) has not left him or her surviving any of the persons mentioned in any of subparagraphs (i), (ii), (iii), (iv) or (v), but has left him or her surviving a female person of Aboriginal descent who, according to the social structure of the tribe to which he or she belonged, was his or her mother by reason of a tribal marriage, that mother shall be entitled to the whole of the balance of the estate.

    (vii) Save and except as provided in subparagraphs (i), (ii), (iii), (iv), (v) and (vi), no person claiming to be a relation of a deceased person of Aboriginal descent (whether a male or a female) to which this regulation applies shall have any right to or interest whatsoever in the estate of that deceased person.

    (2) Where, under the provisions of subregulation (1), any person of Aboriginal descent (whether a male or female) is entitled to the estate or to a share in the estate of a deceased person, then notwithstanding any tribal law or custom to the contrary, that person is so entitled for his or her own separate and personal use, and the Public Trustee shall, so far as lies in his power, within the provisions of the Act, manage, control and administer that estate or that share in the estate for the personal benefit and advancement of the person of Aboriginal descent so entitled thereto.

    (3) The Public Trustee shall as soon as reasonably may be after the death of a person to whom this regulation applies, cause all reasonable inquiries to be made to ascertain and satisfy himself whether or not there is any person of Aboriginal descent surviving the deceased who is entitled to succeed to the estate or to a share in the estate in accordance with the provisions of this regulation, and if, after such inquiries, the Public Trustee is satisfied that there is any such person of Aboriginal descent, he shall, by a certificate in writing signed by him, certify accordingly and shall state in his certificate such particulars as may be necessary to identify that and his or her or their place or places of abode.

    (4) If, after making inquiries pursuant to subregulation (3), the Public Trustee either

    (a) has been unable to ascertain; or

    (b) is not satisfied,

    that there is any person of Aboriginal descent entitled to succeed to the estate or to a share in the estate of the deceased in accordance with the provisions of this regulation, the Public Trustee shall, by a certificate in writing signed by him, certify accordingly and shall state in his certificate the nature of the inquiries made by him, the result thereof, and the grounds upon which he has disallowed the claim (if any) under this regulation of any person of Aboriginal descent to succeed to the estate or to a share of the estate of the deceased.

    (5) Where a person alleges that he has a moral claim to the proceeds or any portion thereof of the estate of a deceased person of Aboriginal descent and is desirous that an order be made by the Governor pursuant to the provisions of section 35(3) of the Act, he shall sign and forward to the Public Trustee an application in the Form No. 3 in the Schedule.

    (6) The Public Trustee shall, as soon as reasonably practicable after receiving an application referred to in subregulation (5), investigate or cause to be investigated the claim of the applicant and report in writing the result of the investigation to the Minister who, if satisfied that the case is one in which an order may be made, shall so recommend to the Governor.



Note: This is not an authorised version. The only authorised version is the hardcopy (printed) version published under authority of the Government Printer, available from the State Law Publisher, 10 William St Perth W.A. 6000.