The Estate of Bunduck - [2021] NTSC 12

CITATION:The Estate of Bunduck [2021] NTSC 12
PARTIES:THE ESTATE OF THE LATE MICHAEL BUNDUCK
TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2020-02804-SC
DELIVERED:  19 February 2021
HEARING DATE:  18 February 2021
JUDGMENT OF:  Barr J

CATCHWORDS:
ADMINISTRATION AND PROBATE – Intestate Aboriginal – Deceased twice ‘tribally married’ – Deceased had not cohabited with first wife for seven years prior to death – Held both wives qualified as a “spouse” of the deceased at the time of death according to the customs and traditions of the relevant Aboriginal community – Letters of administration granted to second wife – Order for the intestate estate to be distributed equally between first and second wives
Administration and Probate Act 1969 (NT) s 14, s 66 (1), s 67A, s 71B, Sch 6, Part I
Interpretation Act 1978 (NT) s 19A (1)(b)
Administration and Probate Regulations 1983 (NT) reg 3

REPRESENTATION:
Counsel:
Applicant:E Raut
Solicitors:
Applicant:De Silva Hebron
Judgment category classification:    B
Judgment ID Number:  Bar2102
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Estate of Bunduck [2021] NTSC 12
No. 2020-02804-SC

THE ESTATE OF THE LATE MICHAEL BUNDUCK

CORAM: BARR J
REASONS FOR DECISION
(Delivered 19 February 2021)

The deceased, an Aboriginal male born 30 June 1970, died intestate at the age of 48 on 7 December 2018. The death certificate issued by the Deputy Registrar of Births, Deaths and Marriages indicates that the deceased was survived by his partner, Beatrice Tcherna, to whom he was said to be ‘tribally married’, and by four adult children: a son aged 27 and daughters aged 25, 23 and 21.
Beatrice Tcherna has made an application for an order for distribution of the deceased’s estate pursuant to s 71B Administration and Probate Act 1969 (NT) (“the Act”).
The estate is a relatively modest one, comprising outstanding salary and leave from the deceased’s former Northern Territory Government employment, a 10 year old Toyota Camry vehicle, and entitlements under the Northern Territory Government Death and Invalidity Scheme amounting to $186,825.55. The total of the assets of the estate is $211,867.63. A liability of $10,000 was initially disclosed for payment of legal expenses in connection with the application for letters of administration.[1] Although the recently sworn Amended Affidavit of Assets and Liabilities does not include any reference to legal expenses as a liability of the estate, I assume that some liability for legal expenses still exists, although not necessarily in the same amount.[2]
The distribution of intestate estates is governed by the Act. Section 66(1) of the Act provides that “the person or persons entitled to take an interest in the intestate estate … and the interest in that estate … shall, subject to this Division, be ascertained by reference to Schedule 6” of the Act.
Schedule 6, Part I, Item 2 of the Act relevantly provides that where an intestate is survived by issue, and where the value of the intestate estate does not exceed the “prescribed amount”, the spouse is entitled to the whole of the intestate estate. Regulation 3 of the Administration and Probate Regulations 1983 (NT) prescribes $350,000 as the relevant amount in the case of an intestate survived by issue. In the present case, because the value of the intestate estate does not exceed the prescribed amount, the spouse is entitled to the whole of the intestate estate.
Ms Eesha Raut, solicitor employed by De Silva Hebron, took over the conduct of her client’s intended application on 27 March 2020. Ms Raut noted the reference in the death certificate to the deceased’s tribal marriage to Beatrice Tcherna and, based on the death certificate referring only to Beatrice Tcherna, assumed that Ms Tcherna was the only surviving spouse.
In an affidavit affirmed 16 December 2020, Ms Raut deposed that, on or about 9 April 2020, Fr Vincent Roche sent an email to Leanne Kerr, another solicitor employed by De Silva Hebron, informing Ms Kerr that a former partner of the deceased wished to find out what she could do to claim a share of the estate. Ms Kerr replied to Fr Roche and asked him to identify the former partner and to obtain authority from her in order that Ms Kerr could speak to Fr Roche on her behalf about the estate. However, as further deposed by Ms Raut, no further email or other communication was received from Fr Roche on behalf of the former partner.
The application for grant of letters of administration was filed on behalf of Beatrice Tcherna on 20 July 2020. Prior to lodgement of the application, Beatrice Tcherna deposed in an affidavit sworn 12 June 2020 that she and the deceased had entered into a tribal marriage in 2011. In a statutory declaration declared 19 February 2020, annexed to the affidavit, Ms Tcherna stated that the deceased had previously been in a de facto relationship with Regina Jimarin, and that they had four children.
In summary, the evidence of Ms Tcherna as at 12 June 2020 was that she was the wife of the deceased at the date of his death, and had been since their tribal marriage in 2011; further, that the deceased had previously been in a de facto relationship with Regina Jimarin. It is unclear when the de facto relationship with Regina had ended, but the inference is that it had ended prior to the tribal marriage of the deceased and Ms Tcherna in 2011. It is also unclear why Ms Tcherna described her own relationship with the deceased as a ‘tribal marriage’, whereas she described the deceased’s previous relationship as a ‘de facto relationship’, even though it had resulted in the birth of four children.
There was no suggestion in the affidavits sworn by Ms Tcherna prior to 20 July 2020 that Regina Jimarin continued to be the wife of the deceased in accordance with Aboriginal custom and tradition after Ms Tcherna’s tribal marriage to the deceased in 2011. Moreover, Ms Tcherna annexed, to one of the affidavits sworn by her on 12 June 2020, a copy of the death certificate issued by the Deputy Registrar of Births, Deaths and Marriages. That death certificate mentioned Beatrice Tcherna, alone, as the person to whom the deceased was married at the time of his death.
On 16 September 2020, Ms Raut wrote to the Registrar of Births Deaths and Marriages to enquire whether the deceased had “any other current spouses” (other than Ms Tcherna, whose name was shown on the death certificate). On 12 October, Ms Raut had a telephone conversation with an officer of the Registry, who confirmed that records were held indicating that the deceased had “another tribal wife”, who was the mother of his children. In response to her question, Ms Raut was told that the name of the other tribal wife was ‘Regina’. Ms Raut asked why ‘Regina’ was not shown on the death certificate and was informed to the effect, as noted: “We only print one wife – most recent”.
The information provided to Ms Raut by the officer of the Registry of Births Deaths and Marriages was consistent with information subsequently provided to her by Fr Roche in a telephone conversation on 24 September 2020, in which Fr Roche informed her that Regina Jimarin was tribally married to the deceased.
Section 19A (1)(b) Interpretation Act 1978 (NT) defines “spouse” in the case of an Aboriginal or Torres Strait Islander as: “an Aboriginal or Torres Strait Islander to whom the person is married according to the customs and traditions of the particular community of Aboriginals or Torres Strait Islanders with which either person identifies.”
Supplementary to the statutory scheme referred to in [4] and [5] above, s 67A of the Act relevantly provides that, where an intestate Aboriginal is survived by more than one spouse,[3] the part of the intestate estate passing to the spouse by force of s 66 (1) “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 of the estate”.
In the present case, there was some evidence to suggest that the deceased may have had two spouses at the time of his death, as explained in [9] – [11] above. However, the evidence was inconclusive as to whether, according to Aboriginal customs and traditions, Regina Jimarin remained a spouse of the deceased to the time of his death. There was no evidence, whether lay Aboriginal evidence or evidence from an anthropologist or other expert as to the status under customary law of a first spouse (or tribally married woman) after a man has entered a second tribal marriage. Moreover, a simple statement of customary law alone might not provide a complete answer and further factual investigation could well be required to determine the nature of the relationship between the deceased and Regina Jimarin by reference to the circumstances required to be taken into account under customary law.
In her Amended Affidavit of Assets and Liabilities sworn 16 October 2020, Beatrice Tcherna identified Regina Jimarin as a “Person Entitled” to share with her in the estate of the deceased as to 50%, on the basis that her relationship to the deceased was “Wife (Tribally Married)”. The identification of Regina Jimarin in this way was a significant concession on the part of Ms Tcherna, but was made in the absence of any explanation.
In the circumstances, Ms Tcherna’s lawyers were notified of the Court’s concern over her apparent change of position, and a request made for clarification, as follows:
In the absence of express evidence filed to date, …. clarification as to whether Ms Tcherna accepts that Regina Jimarin was a spouse of the deceased at the date of his death according to Aboriginal custom and tradition. If so, s 67A Administration and Probate Act 1969 would apply.
Beatrice Tcherna subsequently filed an affidavit sworn by her on 16 February 2021 in which she deposed, inter alia, that:
·     I accept that Regina was a wife of the deceased at the date of his death according to Aboriginal customs and traditions. [par 6]
·     In or around 2011 Michael stopped living with Regina and began living with me. [par 12] He began calling me his wife and I began calling him my husband. [par 13]
·     Even though the community and the traditional elders of the area considered Michael and I husband and wife, they also considered Michael and Regina to be husband and wife. [par 14]
·     I know that sometimes in my culture it is possible for men to have more than one wife, even two, three or four. [par 18]
·     … in my community Regina and I are both viewed as wives of Michael. [par 21]
·     I accept and understand that fifty per cent of Michael’s estate will go to me and fifty per cent will go to Regina as, at the time of his death, both Regina and I were married to him in accordance with Aboriginal customs and traditions. [par 23]
It is clear from her most recent affidavit that Beatrice Tcherna, the person most affected, now accepts that Regina Jimarin was a spouse of the deceased at the date of his death according to Aboriginal customs and traditions.
In the present case, I consider that the Court is relieved from any obligation it might otherwise have to seek further evidence. That is because, pursuant to s 71B of the Act, a person who claims to be entitled under custom or tradition to take an interest in an intestate Aboriginal’s estate may apply to the court for an order in relation to distribution of the intestate estate.[4] Ms Tcherna is entitled to apply and seek a distribution in accordance with the extract from her Amended Affidavit of Assets and Liabilities set out in [15] above.
In my opinion, it is just that the intestate estate be divided into two equal parts, and each spouse receive one part, that is, half of the estate each.
Accordingly, I have made orders as follows:
1.Pursuant to s 14 Administration and Probate Act 1969, letters of administration of the estate of the late Michael Bunduck, deceased intestate, be granted to Beatrice Tcherna.
2.Pursuant to s 67A and s 71B Administration and Probate Act 1969, order that the intestate estate be distributed equally between Beatrice Tcherna and Regina Jimarin.
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[1] Affidavit of Assets and Liabilities, sworn 12 June 2020, deponent Beatrice Tcherna.

[2] The removal of the previously stated liability for legal expenses may have been because of a misinterpretation of s 71A of the, which states that “the intestate estate of an intestate does not include an amount equal to such of the debts and liabilities of the estate, the funeral and testamentary expenses, the costs and expenses of administering the estate and the estate duties, succession duties and other duties and fees payable in relation to the estate as are payable out of the intestate estate.” The effect of the provision is to make clear that the intestate estate – available for distribution – is the net estate after payment of debts, administration costs etc.

[3] Section 19A (1)(b) Interpretation Act 1978 (NT) defines “spouse” in the case of an Aboriginal or Torres Strait Islander as: “an Aboriginal or Torres Strait Islander to whom the person is married according to the customs and traditions of the particular community of Aboriginals or Torres Strait Islanders with which either person identifies.”

[4] Section 71B (1) reads as follows: “A person who claims to be entitled to take an interest in an intestate estate of an intestate Aboriginal under the customs and traditions of the community or group to which the intestate Aboriginal belonged … may apply to the Court for an order under this Division [Division 4A] in relation to the intestate estate.”