At first sight, the heading – Succession law and human rights – may appear to be strange because of the distinction in subject-matter between those two areas of law: The first concerns the law of wills and the administration of deceased estates; the other concerns the basic rights of everyone: We are all born free and equal in dignity and rights. We are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.1
However, the two areas are not mutually exclusive. On 1 January 2020, most provisions of the Human Rights Act 2019 (Qld) (the Act) became law and required the drafting of legislation and judicial interpretation of legislation to be compatible, as much as possible, with human rights.2 It is noteworthy that human rights were part of the judicial reasoning in succession cases before the commencement of the Act.3
Two areas of succession law, namely Family Provision claims and disputes concerning funeral arrangements, are now particularly impacted.
Family provision claims
In their reasons for making orders in favour of an applicant for Family Provision, the courts have included reasons based on human rights. In particular, reliance has been on the right of applicants with disabilities to human dignity.
In Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams4 the Queensland Court of Appeal highlighted the importance of considering human rights.
The applicant, a 46-year-old man who had Down Syndrome, appealed from a District Court decision refusing to sanction an agreement with his four siblings for Family Provision from his late father’s estate.
Allowing the appeal, the court (McMurdo P, Lyons and Boddice JJ) sanctioned that the applicant receive $140,000 inclusive of costs from the estate valued at $443,175. The value of his assets was $21,472.
In one of its reasons, the Court of Appeal referred to the failure of the primary judge to acknowledge ‘contemporary international Human Rights instruments’5 which recognise the rights of people with disabilities. The applicant had a right based on his human worth and dignity: ‘That dignity would be enhanced by extra financial assistance to provide him with new clothes and furniture, including a functional television set’. The court continued: ‘The relevant human rights principles emphasise the importance of the applicant being encouraged and supported to achieve his maximum physical, social, emotional and intellectual potential and becoming as self-reliant as possible’.6
In Niebour-Pott v Pott,7 two children (the applicants) of a de facto relationship, aged 17 and 23, made application for adequate provision from their late father’s estate which had the approximate value of $3.8 million at the date of his death. The applicants both suffered from severe Autism Syndrome Disorder and other health issues. Under their father’s will they received nothing; his second wife and a daughter were the main beneficiaries.
While referring to the freedom of a testator to dispose of his or her property as one of the freedoms that shapes our society and an important human right, Ryan J quoted Callaway JA in Grey v Harrison8 who qualified that freedom as subject to the rights and freedoms of others and that a breach of moral duty is justification for curial intervention.
In Niebour-Potts, Her Honour, finding that the applicants’ syndrome made the world a ‘hostile place for them’, allowed them provision of $400,000 each for their advancement by way of an enhancement in their dignity and referred to Whitmont v Lloyd9 where provision was granted to increase the dignity of the applicant.
Funeral and burial duties
Prominent among succession cases, which involve human rights, are disputes regarding funerals and burials.
The recent Queensland case of Accoom v Pickering10 considered Aboriginal issues, both cultural and familial, in a dispute between the parents of the deceased concerning the place and kind of burial of their son. The mother’s preference was Mareeba rather than Croydon, the choice of the father.
Henry J observed that it was uncontroversial before the Human Rights Act 2019 (Qld) that Aboriginal customs, including cultural and spiritual beliefs, were relevant in such a case. The sections of the Act confirmed the approach that had been taken in the past. Section 28 acknowledges ‘the distinct cultural rights’ of Aboriginal and Torres Strait Peoples who must not be denied the right:
‘to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings’.
Noa Navacakalou v Raeleen Vincent11 provides an example of effective evidence for a ‘human rights’ submission. The deceased was a 19-year-old Aboriginal man. His father, a Fijian, and his mother, an Aborigine, each sought a grant of administration limited to the custody of their son’s body and the arrangement of the funeral. The father wished to arrange a burial, the mother a cremation. The deceased and his mother were members of the Wiradjuri people.
A professor of Indigenous Australian studies, a Wiradjuri woman, gave substantial evidence of the culture and practices of the Wiradjuri people, including their culture’s tradition that the mother was the head of the family and that the birth rights ran through the female line. The mother had the responsibility for ensuring that cultural law was followed, including death rites and funerals.
Henry J ordered that the deceased’s remains be released to the custody of the mother for the arrangement of the funeral to be consistent with the deceased having identified as an Aboriginal man of the Wiradjuri people.
The principles of human rights are being applied by the courts in succession cases in the contexts mentioned above. They are likely to feature increasingly as more jurisdictions emphasise their relevance and require courts to consider legislation in terms of its compatibility with human rights. In appropriate circumstances, legal practitioners have the opportunity, or perhaps the obligation, to address the human rights dimension/issue in their advocacy.
Dr John de Groot
de Groots wills and estate lawyers
1 The United Nations Universal Declaration of Human Rights 1948, Article 1.
2 See s 4(f), Human Rights Act 2019. Two other jurisdictions have similar statutes: Human Rights Act 2004 (ACT) and Charter of Human Rights and Responsibilities Act 1975 (Vic). Specific areas of human rights are found in State and Federal legislation, for example, Racial Discrimination Act 1975 (Cth), Disability Discrimination Act 1992 (Cth).
3 See, for example, Doherty v Doherty  QSC 257; Johnson v George  QSC 140.
4  QCA 286.
5 United Nations Declarations on the Rights of the Disabled Persons 1975; United Nations Convention on the Rights of Persons with Disabilities 2007.
6 Abrahams op.cit.
7  QSC 7.
8  2 VR 359.
9 NSWSC Unreported. 31 July 1995, per Bryson J.
10  QSC 388.
11  NSWSC 24.