Application of Higgins

Case [2023] NSWSC 689


Supreme Court


New South Wales

Medium Neutral Citation: Application of Higgins [2023] NSWSC 689
Hearing dates: In Chambers
Date of orders: 22 June 2023
Decision date: 22 June 2023
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court:

(1) Orders, pursuant to s 134 of the Succession Act 2006 (NSW), that the whole of the estate of the deceased, be distributed, after payment of debts, funeral and testamentary expenses and costs, to the Plaintiff for her own use and benefit.

(2) Orders that the Plaintiff’s costs, calculated on the indemnity basis be paid, or retained, as the case may be, out of the estate of the deceased.

Catchwords:

SUCCESSION – Intestacy and distribution on intestacy – Indigenous person dies intestate - Intestate never married, died without spouse and without issue - Parents of intestate entitled under operation of rules of intestacy – Despite searches father of the intestate unable to be located – He had played no part in the life of the deceased - No other interested persons – Mother seeks an order for distribution of the intestate estate as a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged – Reliance upon Succession Act 2006 NSW, Part 4.4 – Scheme for distribution of the estate in accordance with the laws, customs, traditions and practices of the community or group to which the intestate belonged is to her as the mother of the Indigenous intestate - Distribution order made under Succession Act, s 134

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 86, 90

Domicile Act 1979 (NSW), ss 8, 9

Succession Act 2006 (NSW), Pts 2.2, 4.4, 4.5

Uniform Civil Procedure Rules 2005 (NSW), r 36.1

Cases Cited:

Application by NSW Trustee and Guardian (Estate of the late Marko Sijakovic) [2012] NSWSC 1532

Application of Harnett and Cutts [2016] NSWSC 427

Bailey v Polumbo [2020] NSWSC 1209

Bevan v Bevan [2013] FamCAFC 116

FDN [2011] QCAT 325

Gibbs v Capewell [1995] FCA 1048; (1995) 54 FCR 503

Hepburn v Skirving (1861) 9 WR 764

Iyengar v Commissioner of Taxation (2011) 85 ATR 924; [2011] AATA 856

JC [2012] QCAT 609

Kertesz v Kertesz [1954] VLR 195

Lewis v Balshaw (1935) 54 CLR 188; [1935] HCA 80

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223

O’Donnell v O’Donnell [2022] NSWSC 1742

Potinger v Wightman (1817) 3 Mer 67

Re Benjamin; Neville v Benjamin [1902] 1 Ch 723

Re Berchtold; Berchtold v Capron [1923] 1 Ch 192

Re Crook (1936) 36 SR (NSW) 186

Re Estate Jerrard, deceased (2018) 97 NSWLR 1106; [2018] NSWSC 781

Re Estate Wilson, deceased (2017) 93 NSWLR 119; [2017] NSWSC 1

Re NBL [2019] NSWCATGD 5

Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113

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Application of Higgins [2023] NSWSC 689
Case
[2023] NSWSC 689
Decision Date

CaseChat Overview and Summary

The case involves the application of Higgins, in which the mother of an intestate Indigenous person sought an order for the distribution of the estate under the Succession Act 2006 (NSW). The deceased, who was never married and had no children, died without leaving a will. The court was required to determine the appropriate beneficiaries under the rules of intestacy, specifically considering the laws, customs, traditions and practices of the Indigenous community to which the deceased belonged. The mother was the only interested party and claimed entitlement to the estate under the Indigenous community’s laws.

The legal issue before the court was whether the mother was entitled to the estate under the laws, customs, traditions and practices of the Indigenous community or group to which the deceased belonged. The court needed to ascertain the applicable Indigenous laws, customs, traditions and practices, and assess whether the mother's claim aligned with these. The court also had to consider the absence of the father, who had not been involved in the deceased's life, and whether his non-involvement impacted the mother's entitlement to the estate.

In determining the appropriate distribution of the estate, the court examined the provisions of the Succession Act 2006 (NSW), specifically Part 4.4, which addresses the distribution of estates according to the laws, customs, traditions and practices of Indigenous communities. The court found that the mother was entitled to the estate under these provisions, as she was the only interested party and the deceased's mother. The court emphasised that the father's absence and lack of involvement in the deceased's life did not preclude the mother's entitlement. The court concluded that the distribution of the estate should be made in accordance with the Indigenous community’s laws, customs, traditions and practices, and made the relevant order under the Succession Act.

The court issued an order for the distribution of the intestate estate to the mother, pursuant to the Succession Act 2006 (NSW), section 134. This order recognises the mother's entitlement under the laws, customs, traditions and practices of the Indigenous community to which the deceased belonged. The order effectively recognises the mother's role and rights within the Indigenous community's framework for intestate succession.

Orders

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Background

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Evidence

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Decision

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