Application of Higgins [2023] NSWSC 689 concerns the administration of the estate of Sheree Jane Higgins (“the deceased”), an Indigenous person, and the claim brought by her mother, Emily Higgins, (”the plaintiff”)for “a distribution order” under Part 4.4 of the Succession Act 2006 (NSW) (the Act).
Distribution Order
The Applicant, [Emily Higgins], being the mother of the deceased, shall distribute the entirety of the estate of the late Sheree Jane Higgins, unto herself, in accordance with the laws, customs, traditions and practices of the Aboriginal community in Echuca to which the deceased and the applicant both belonged (sic).
Application of Higgins [2023] NSWSC 689 at 133
Legislative history
Chapter 4 was inserted into the Act by the Succession Amendment (Intestacy) Act 2009 (NSW), which applies to persons dying intestate on, or after, 1 March 2010. Section 101 of the Act defines “Indigenous person” through a tri-partite, cumulative, test, incorporating genetic, or biological, descent, self-identification, and community acceptance or recognition: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 70; [1992] HCA 23 at [83] (Brennan J) being:
“a person who:
(a) is of Aboriginal or Torres Strait Islander descent, and
(b) identifies as an Aboriginal person or Torres Strait Islander, and
(c) is accepted as an Aboriginal person by an Aboriginal community or as a Torres Strait Islander by a Torres Strait Islander community.”
The weight to be given to each, or any of these factors, is a matter for the Court and may vary from case to case.
The purpose of Part 4.4 is to do what is just and equitable in the particular circumstances of an individual case, to accommodate the fact that, in an Indigenous community, concepts of “family” relationships may differ radically from the concepts of family relationships upon which general statutory intestacy rules are based.
The matter
The plaintiff sought an order, under s 134(1) of the Act, that the entirety of the deceased’s intestate estate be distributed to her, alone, under the laws, customs, traditions, and practices, of the Indigenous community or group to which the Indigenous and intestate deceased belonged or any scheme for the distribution of the estate of an Indigenous person, rather than under the operation of the rules of intestacy.
The Court granted the plaintiff Letters of Administration of the deceased’s intestate estate on 1 November 2022, noting her undertaking not to distribute the estate of the deceased, pending the determination of the application for a distribution order.
The Plaintiff submitted that as the deceased died with no spouse or issue s 128 of the Act provides that her estate would vest in the deceased’s parents, and, if both survive, in equal shares.
Background
The deceased was born in 1987 to an Aboriginal mother. When the deceased was 5 she was involved in a motor vehicle accident and suffered severe and permanent brain damage. In 2003 the deceased received a compensation payment of approximately $3.8 million, which was held for her by the NSW Trustee and Guardian. The deceased died intestate in 2020.
The plaintiff is a member of the Wiradjuri Yorta-Yorta community from Central NSW. Now 53, the plaintiff was the deceased’s carer in and around the Riverina region before moving to Echuca, – in Victoria -where the deceased attended a specialist school.
The plaintiff submitted that she was born in Deniliquin, a town in the Riverina region of New South Wales and that the deceased’s domicile of origin would be New South Wales. Additionally, the deceased’s estate was managed by the then Protective Commissioner, and more recently, by the NSW Trustee and Guardian (NSWT&G) until the time of her death.
In the alternative, it was submitted that even if the Court had found that the deceased was not domiciled in New South Wales, Part 4.4 of the Act has displaced the common law position, and, thus, the Plaintiff could still apply for an order under s 134 of the Act as the deceased left movable property in New South Wales, being the fund held by the NSWT&G on behalf of the deceased.
Indigenous person
Evidence of the Indigenous community or group to which the deceased belonged was given by the elders of “the Aboriginal community in Echuca”. According to their understanding of the culture and traditions of the Aboriginal community in Echuca, most members in that community do not make a formal will.
When a member of the Aboriginal community in Echuca dies, the ordinary practice would be for her, or his, immediate family to determine how the member’s assets or belongings would be distributed. Indigenous customary law places greater emphasis on communal obligations; the closest member of the family would ordinarily receive all the assets of the deceased under the usual customs or traditions of the Aboriginal community in Echuca.
In all the circumstances, the Court was satisfied that it has jurisdiction to deal with the matter.
The biological father
Stephen Farkas the deceased’s biological father never acknowledged the deceased as his daughter and has played no part in the proceedings. Despite significant efforts, Stephen has not been able to be located. Ordinarily, an application may be made to the court for the estate to be distributed under a “Benjamin order“. However, a Benjamin order leaves open the possibility that Stephen may re-emerge to make a claim on the deceased estate.
In the circumstances, the plaintiff sought a distribution order under Part 4.4, consistent with the customs and practices of her indigenous community, to receive the entirety of the deceased’s estate to the exclusion of the deceased’s biological father. In NSW Stephen is entitled to 50% of the deceased’s intestate estate under the Succession Act 2006.
If the Plaintiff’s submissions are accepted, instead of the deceased’s parents being entitled to the whole of the intestate estate in equal shares, the Plaintiff, according to the distribution order, would receive the whole of the deceased’s estate.
According to the laws, customs, traditions and practices of the Indigenous community or group to which the intestate belonged, being the Aboriginal community in Echuca, Stephen would not be entitled to any of the deceased’s assets and belongings, as he was neither a member of the Aboriginal community in Echuca nor did he have any contact with the deceased.
Additionally, the following information and facts indicate the biological father ought to be excluded from benefiting from the deceased’s estate.
- he denied paternity and had no contact with the deceased during her life.
- following the deceased’s accident in 1993, the Plaintiff was the one who travelled to Melbourne hospital and was by her side every day for a total of two months and continued to visit her every day when the Plaintiff was in hospital in Wagga Wagga.
- despite having two young children of her own, the Plaintiff took on a significant burden in raising the deceased at home, where she showered and dressed the deceased, cooked all her meals, assisted her with eating and took her to several rehabilitation programs.
- after the deceased needed full-time care and moved into the Glanville Nursing Home, the Plaintiff visited the deceased three to four times a week.
The plaintiff is effectively the only parent of the deceased with whom the deceased had any involvement. The Court was satisfied that the plaintiff is “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”.
The decision
Accordingly, the Court ordered that under s 134 of the Act 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 use and benefit. 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.