Although the future of the Aboriginal flag is resolved, the fate of another indigenous treasure is not so fortunate. The NT Supreme Court has ordered the finances of the late musical legend Geoffrey Gurrumul Yunupingu be consigned to the Northern Territory government’s Public Trustee after his former manager and friend withdrew his application to administer the estate. Attwood Marshall Lawyers Wills and Estates Senior Associate Debbie Sage discusses the complexities involved in the administration of Gurrumul’s estate.
Warning: Aboriginal and Torres Strait Islander readers are advised that the following article may contain images and names of people who have died.
Gurrumul, who was blind from birth, was a brilliant Yolngu multi-instrumentalist with an angelic voice. He exposed the north-eastern Arnhem Land languages of Gaalpu, Gumatj and Djambarrpuynu to millions. He has been described as an important figure providing a voice for Indigenous Australians and promoting racial harmony. After a career spanning 28 years, he sadly died in July 2017, aged 46.
He first came to prominence after joining the band Yothu Yindi in 1989. Still, his 2008 legendary debut album ushered fame worldwide. That fame magnified due to a series of award-winning recordings and a frenetic touring schedule, culminating in his 2015 tour of the United States and final studio recording that year.
In September 2021, Mark Grose, a friend and former manager, applied to the NT Supreme Court to be appointed administrator of Gurrumul’s Estate. Mr Grose did not provide an explanation for the delay of the application, which included a copy of a Will made by Gurrumul in 2015 and a video recording of it being signed and witnessed.
The Will’s operative clauses provide that Gurrumul wanted “half of my income to go to my daughter Jasmine Yunupingu … the other half … paid into the Gurrumul Yunupingu Foundation”, a charitable foundation Grose is a director of which was established in 2013.
Grose provided evidence via an affidavit that contained some context to his application and the making of the Will. It states that no legal advice was sought at the time, although he says he had on many occasions encouraged Gurrumul to obtain legal advice, to no avail. Grose says the only asset remaining in Gurrumul’s Estate was income received from music royalties, with a current balance of $11,000.
In her interim decision, Justice Judith Kelly rejected the application on several grounds.
She was concerned that the Will did not correctly address Gurrumul’s assets other than his “income”. For example, there was no mention of the intellectual property in his recordings and other personal property such as royalties, personal bank accounts, and other possessions that may have “substantial value” because of their origin and history.
Significantly, Justice Kelly noted that Gurrumul’s death certificate cited the separation from his wife Angela Gurruwiwi and an ensuing de facto relationship with another woman. The Will did not mention either relationship, nor did the affidavit by Grose which should have identified all interested parties to the proceedings. Justice Kelly observed that both women had rights and interests that needed to be considered.
Justice Kelly was also concerned that the Will professed to direct income from Gurrumul’s intellectual property without endowing that property in any person. This may contradict a common law doctrine known as the rule against perpetuities. Justice Kelly was also concerned that, on the evidence, Grose had been “intermeddling” in the estate for some years by accessing and distributing funds from estate assets without the proper authority. In those circumstances, Justice Kelly considered that the NT’s Public Trustee should be appointed as administrator of Gurrumul’s Estate.
The matter was returned to Court in early February 2022 to assess further information that was to be provided and to determine whether the Public Trustee should be appointed administrator of Gurrumul’s Estate.
It was held that the Public Trustee would temporarily govern Gurrumul’s estate, following the withdrawal of Grose’s application to be appointed as the administrator.
The ruling will mean ongoing royalties earned by the musician will be managed by the NT Public Trustee until someone from Gurrumul’s family makes an application to administer the estate themselves.
It remains unclear exactly how much the estate is currently worth.
Solicitor Chris Osborne advised that Mr Grose wanted to discontinue his application due to a lack of financial resources.
Jasmine Yunupingu’s lawyer, Sean Bowden, said he had learned there was potentially a third wife/de facto partner who may be interested in the estate, which could be accommodated under Northern Territory law.
Judge Kelly made the decision that the Public Trustee looks after Gurrumul’s Estate in the interim until an interested party makes an application to the Court to be the proposed administrator.
The case will return to Court on April 27, 2022.
The commonality of Indigenous people not having a Will
Historically, it was regarded that Australian Indigenous people living traditional lives did not need a Will, and Indigenous people living non-traditional lives could adhere to the same succession law as all other Australians. This was based on the perception that Indigenous people can be easily divided into traditional and non-traditional. This is not accurate and what this perception has resulted in is the fact Australia has largely ignored the succession requirements of Indigenous people.
Indigenous people throughout Australia tend to transpose between traditional and urban environments. They carry their customary law views with them, performing necessary rituals when needed and maintaining their views about who are their kin. It is also true that now there is a burgeoning Aboriginal middle and professional class.
The number of Indigenous people employed in professional occupations has grown by over 75 per cent in a decade (Australian Bureau of Statistics, 2016 Census) and continues to increase. However, this group also live a mixed lifestyle, maintaining traditional kinship views and customary law obligations.
Typically, if a person dies intestate (without a will), those entitled to inherit the estate are the deceased’s spouse and children, parents, grandparents, siblings, blood aunts and uncles, and blood first cousins, usually in that order. If there is no one in those categories, the government will govern the estate.
In New South Wales, there is an exception if the deceased person is an Indigenous Australian. The Succession Act 2006 permits under section 133:
- a person claiming entitlement to share in an intestate estate under the Indigenous community’s laws, traditions, and practices, apply to the Supreme Court for an order for distribution of the intestate estate.
Because Indigenous people often maintain many aspects of their traditional customary law knowledge and obligations, those living traditionally and non-traditionally may not be well served either by mainstream intestacy laws or by Wills, which are written with no regard for cultural issues. The simplest way to demonstrate this is by reference to ideas about kinship. In the common law of succession, kinship centres on the nuclear family and traces from the past to the future down a bloodline, often only down the male line. We rarely consider it, but the names we call people as kin reflect our view of their obligations to us. For example, ‘mother’ and ‘father’ are expected to look after ‘children’ but the common law also uses these names in respect of bloodline relationships so that, for example, ‘mother’ refers only to the woman who gave birth to the ‘child’.
According to statistics, around 50% of Australians do not have a valid Will. While the exact reasons are not known, it is probably a combination of not knowing how to create one and/or ignoring our own mortality. Regardless, it is always essential to have your affairs in order, no matter how old you are, as you never know what could happen tomorrow.
Intermeddling in an estate
Intermeddling occurs when an individual has prematurely started the estate administration process without the property authority. For example, collecting the deceased’s assets or settling their debts.
It is a requirement that if an Executor wishes to renounce their executorship, they must not have already begun the administration of the estate and must not have received any estate assets or started settling any of the estate’s debts, in NSW. However, in QLD Section 54 of the Succession Act 1981 (QLD) allows an intermeddler to renounce executorship prior to probate of the will being obtained.
If an Executor has started dealing with the estate, then they must continue in this role unless they become incapable of acting. If intermeddling has occurred, the Executor may be liable for the payment of any Inheritance Tax or responsible to settle debts with any estate creditors.
A beneficiary who carried out the role of Executor, without being appointed Executor, may be considered to have intermeddled in the estate.
Several options are available if an Executor has intermeddled in the estate but wishes to renounce, and it is important that anyone in this position get the appropriate legal advice as soon as possible.
Copyright after you die
For an artist or writer, it is important to consider copyright when arranging what will transpire of your property after you die. Copyright in literary and artistic works, such as novels, photos, and artworks, that you own when you die, is personal property that can be passed on in a Will. Copyright grants control over how and by whom works are used. In addition, it could provide an income stream from royalties when work is licensed, such as the educational and government licences administered by the Copyright Agency.
Copyright in works will typically last for 70 years after death. The duration rules mean that after death, there is a long period in which your copyright beneficiaries can control the use of works created by you and continue to benefit from publishing contracts and other licensing arrangements to utilise the works.
If you do not specifically deal with your copyright assets in your Will, then they will form part of the “residue” of your estate, along with any other property that is not explicitly bequeathed, and your Executor will distribute it to the beneficiaries of that residue after payment of most estate expenses.
The importance of obtaining legal advice to draft a Will properly
Having a properly drafted Will can ease stress for you and your loved ones when you pass away, and it is not as difficult or as expensive as you may think. Many people underestimate the importance of having a Will drafted correctly by a professional estate planning lawyer which could potentially save your estate thousands of dollars by obtaining the appropriate advice and drafting the Will to suit your circumstances.
While do-it-yourself Will kits are easily accessible, using them is NOT advised. A Will is a legal document and should reflect your unique personal circumstances. A DIY Will Kit does not consider your specific circumstances or the assets that you own, nor does it provide you with any guidance or advice on strategies that you may never have thought was possible if you did not receive advice from an experienced estate planning lawyer.
Some of the common mistakes people make when preparing a Will themselves include not signing or witnessing the document correctly and trying to include assets they do not own (eg. Jointly owned assets, assets held in a company or trust).
There are so many unusual requests or provisions in DIY Wills that aren’t feasible. This not only creates uncertainty and potential conflict between your loved ones throughout the administration of your estate, but it also results in your hard-earned money being spent on legal fees to deal with the issues when they could have been dealt with by investing in proper advice and drafting from an experienced Estate Planning Lawyer.
How can Attwood Marshall Lawyers help?
No one likes to talk about death; however, just because you plan for it does not mean you are in a hurry to leave. Having a valid Will and estate plan can help give you and your loved ones some peace of mind, especially when the time comes and you are no longer here. You will be giving them a greater understanding of your wishes and helping them fulfil your testamentary intentions.
Attwood Marshall Lawyers is a leading estate planning law firm that boasts Australia’s largest and most experienced Wills and Estates team. Our specialist team practices exclusively in their field, and we have dedicated lawyers who can assist with estate planning, estate litigation and contesting Wills, and the estate administration process.
When it comes to estate planning, our lawyers take a comprehensive and holistic approach to ensure our clients get a personalised service that considers their unique circumstances, cultural background, and testamentary wishes. We can help mitigate the risk of someone challenging your estate and review what assets exist and how they can be structured to ensure the wealth you have built up goes to whom you intend after you pass away.
To discuss our estate planning services or to make an appointment at one of our conveniently located offices, please contact Wills and Estates Department Manager Donna Tolley, directly on 07 5506 8241, mobile 0423 772 555 or email firstname.lastname@example.org