Introduction The case of Application of Higgins [2023] NSWSC 689 was heard before Hallen J in the Supreme Court of NSW. This case is significant in the area of Aboriginal intestacy and the distribution of a deceased Indigenous person’s estate according to customary law. The civil proceedings concerned the administration of the deceased’s (Sheree Jane Higgins’) intestate estate. Material facts The claim was brought by the Plaintiff, the deceased’s mother (Emily Higgins), who sought a ‘distribution order’ under part 4.4 of the Succession Act 2006 (NSW) (‘the Act’). The Plaintiff sought the deceased’s entire estate be distributed alone to her, aligning with s.134(1) of the Act, instead of its equal division between both parents under s.138 of the Act. This was sought under the ‘laws, customs, traditions, and practices’ of the Indigenous group the deceased belonged to, instead of the legislative rules of intestacy. The Plaintiff, a member of the Wiradjuri Yorta community in NSW, was the deceased’s carer. The deceased’s biological father, Stephen Farkas, was not an Indigenous man and lacked any part in the proceedings. …show more content…
Legal issues The legal issues that the Court was required to answer included: Did the Court have the jurisdictional basis for the application of a distribution order, or was the jurisdiction contained to the Supreme Court of Victoria? Was the deceased an ‘Indigenous person’ as determined by s.101 of the Succession Amendment (Intestacy) Act 2009 (NSW)? Was reasonable notice of the proceedings given to all persons reasonably supposed to have interest in their