Application of Higgins [2023] NSWSC 689

Application of Higgins [2023] NSWSC 689

Given the deceased was an Indigenous person who died intestate, whose only close family and carer was the Plaintiff mother, and whose biological father had no contact or relationship with the deceased and could not be located despite exhaustive attempts, and given the evidence of community elders that the customary law and practice would dispose the estate to the closest family member (the Plaintiff), the Court found it just and equitable to order distribution of the whole estate to the Plaintiff, displacing the statutory rules of intestacy.

Parties
Plaintiff: Emily Marlene Higgins; Deceased: Sheree Jane Higgins (deceased); Potential Beneficiary (absent): Stephen Farkas
Jurisdiction
Australia
Judgment Date
22 June 2023
Procedural Posture
Application for Distribution Order (intestacy, Equity) / Final Determination
Outcome
Orders made granting distribution of the entire estate to the Plaintiff and Plaintiff's costs out of estate.
Legal Topics
Intestacy, Distribution of Indigenous Estate, Customary Law, Letters of Administration
Succession Law Equity Intestacy Distribution of Indigenous Estate Customary Law Letters of Administration

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 30 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Emily Marlene Higgins

Plaintiff

Sheree Jane Higgins (deceased)

Deceased

Stephen Farkas

Potential Beneficiary (absent)

Procedural Posture

Application for Distribution Order (intestacy, Equity) / Final Determination

Legal Issues

  1. 1 Whether applicant is entitled to distribution order under Succession Act 2006 (NSW), Part 4.4 in respect of an Indigenous intestate
  2. 2 Identification of laws, customs, traditions and practices of relevant Indigenous community for distribution of estate
  3. 3 Whether notice was given to interested parties, particularly the deceased's biological father

Ratio Decidendi

Given the deceased was an Indigenous person who died intestate, whose only close family and carer was the Plaintiff mother, and whose biological father had no contact or relationship with the deceased and could not be located despite exhaustive attempts, and given the evidence of community elders that the customary law and practice would dispose the estate to the closest family member (the Plaintiff), the Court found it just and equitable to order distribution of the whole estate to the Plaintiff, displacing the statutory rules of intestacy.

Court Disposition

Orders made granting distribution of the entire estate to the Plaintiff and Plaintiff's costs out of estate.

Orders

  • The whole of the estate of the deceased, after payment of debts, funeral and testamentary expenses and costs, is to be distributed to the Plaintiff for her own use and benefit (Succession Act 2006 (NSW), s 134).
  • Plaintiff's costs, calculated on the indemnity basis, be paid or retained out of the estate.