Aboriginal sisters win $200,00 Stolen Generation inheritance battle after help from indigenous MP Linda Burney

In a case described as ‘the first of its kind’ by NSW Supreme Court judge Geoff Lindsay, 3 aboriginal sisters have won an appeal to be given access to the Estate of their half-brother, who died without leaving a Will. MP Linda Burney has successfully plead with a NSW Supreme Court Judge to rule in favour of three of her Aboriginal friends, who were looking to access their half-brother’s $200,000 Estate. Their brother, Mr. Howard Stanley Wilson was a member of the Stolen Generation, and was adopted by a white family in a ‘forced adoption’ shortly after his birth. Ms. Burney addressed a letter to the court, seeking to ensure that the women would inherit their half-brother’s Estate, in front of the members of the white family that adopted, and raised him. Ms. Burney, the first Aboriginal to be elected to the Australian House of Representatives, was a member of the NSW parliament that amended succession law, the changes to which allowed the sisters to make the claim in the first place. 

Highlighting the complications surrounding dying without leaving a Will.

Mr. Howard Stanley Wilson, 56, died in 2013 without having written a Will. A member of the Stolen Generation, but having lost contact with his adopted white family, in favour of his Aboriginal family, he left behind an estate of $200,000. The court battle centred round who was entitled to the Estate, his Aboriginal half-sisters, or his adopted white half-sisters. The judge presiding over the case stated that no court had ever been asked to decide between an Aboriginal person’s biological and adoptive family in these circumstances.

Born in the mid-1950s, to Eunice Gardner (nee Clark), an unmarried 18-year-old woman, of the Gunditjmama nation in western Victoria, Mr. Wilson was given up for adoption to a white couple, the Wilsons. His mother went on to have three other children: Jill Annette Bott, Michelle Muriel Gardner and Susan Christine Donavan. The three sisters argued that it was never their mother’s decision to give Mr. Wilson up for adoption, and never gave up looking for him, even on her deathbed. It was after their mother’s passing, and the release of adoption files in the 1990s that they eventually found him, and went on to become closer to him in the 20 years that followed.

After finally finding their brother, the sisters discovered that he had ended all contact with his adoptive white family, to the point where he hadn’t attended his white adoptive father’s funeral. Their reunion was described as ‘joyous’, and evidence was presented that the rest of his white family weren’t ever aware of his death until 3 years later. It was noted by the judge that he had barely known his white half-sisters, his adoptive father’s from a second marriage, while he had been ‘lovingly embraced’ by his aboriginal sisters. 

Mr. Wilson never married, never had children, and all parents, both adoptive and biological, were deceased. Since, under normal circumstances, all biological ties are severed following adoption, by law, Mr. Wilson’s white half-sisters were his closest living relatives. However, thanks to the changes made to the Succession Act, his aboriginal half-sisters were able to make a claim to his Estate.

The change to the Succession Act in NSW, passed by NSW parliament while Ms. Burney was a member of NSW Legislative Assembly, allows distribution to any person able to demonstrate their entitlement under ‘the laws, customs, traditions and practices of the indigenous community’. The change in the law was designed to acknowledge that Aboriginal people see ‘family’ differently, and want their Estates divided as such.

Without these provisions in the law, it is unlikely that his Aboriginal half-sisters would have received as much of the Estate as they did, despite it likely being that this would have been Mr. Wilson’s wish.

A key argument for the Aboriginal sisters was that their mother was forced to give Mr. Wilson up for adoption, and that despite their family being torn apart over 50 years ago, their love for each other endured. Despite this, Justice Lindsay stated: ‘At the risk of courting controversy … I attribute little if any legal significance to Ms. Burney’s characterisation of the ‘forced adoption’. I do not doubt that an Aboriginal woman who was single and pregnant in the mid-1950s would have been likely either to have her child removed from her care … or placed under social pressure to consent to adoption’. He justified these claims by stating that the same would have been true of single white women in the same position at that time.

Justice Lindsay, however, noted that if Mr. Wilson had written a Will, it would have likely have been left his Estate to his Aboriginal half-sisters. He added that he may have left his white sisters something, so awarded them $4000 each.

Ms. Burney, who provided support to the sisters in the form of a letter written to the court, stated that she had ‘personally known the family for over 25 years. I always knew their mother, Ms Eunice Gardner. I attended her funeral. I can confirm the family are an Aboriginal family … they have been part of the Sydney Aboriginal community for over 50 years. Jill, Susan and Michelle are the late Mr. Wilson’s only biological family. They had a close and familial relationship with their brother for over 20 years until his death.’

Thanks to the changes in the Succession Act in NSW, the Aboriginal sisters won access to the estate that they rightly deserved.

Contact Szabo & Associates, Solicitors

The importance of making sure you have a will written cannot be underestimated, and while it may seem obvious who you intend to leave your estate to, in the eyes of the law it may be an entirely different outcome. If you have any questions about succession or contesting a will, book a consultation with George Szabo by calling 02 9281 5088.