Application of Higgins

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.