The High Court has allowed the mother of a person who died intestate to extract a grant of administration, while leaving unresolved whether the deceased’s spouse had waived rights to the estate under a separation agreement.
The ruling by Ms Justice Butler does not decide who is ultimately entitled to inherit. The court refused the mother’s request for a declaration that the spouse had renounced the right to obtain the grant, saying the agreement’s validity must be decided in properly constituted proceedings.
The deceased died in January 2021. The mother and spouse each lodged applications for a grant, preventing the Probate Office from issuing one. The spouse was still legally married to the deceased when they died; no order had been made dissolving the marriage.
The mother relied on a separation agreement signed by the spouse in March 2013. It said the parties renounced rights in each other’s estates and waived the right to extract a grant. The deceased paid the spouse a lump sum under the agreement. The spouse’s signature was undated and unwitnessed, and the deceased did not sign it.
The spouse disputed the agreement’s validity, citing ill health, lack of independent legal advice, vulnerability and financial pressure, the size of the payment relative to the estate, and the absence of asset disclosure. The mother disputed those claims. The judge said the serious competing arguments could not be determined on affidavit evidence in the non-contentious Probate List.
The judge also rejected the argument that the agreement had to be treated as conclusively valid because the spouse had not brought separate proceedings to set it aside. The spouse had challenged its validity in the divorce proceedings, which remained unresolved when the deceased died. But the agreement could not be treated as conclusively invalid either. The judge said an agreement affected by fraud or duress, or one that was clearly unconscionable, was voidable rather than void and should be treated as presumptively valid unless and until a court set it aside.
Using section 27(4) of the Succession Act 1965, the court gave the mother liberty to extract the administration grant because special circumstances made an order appropriate. The judge said this was not a conclusion, even a tentative one, on the agreement’s validity. The court stayed distribution of the estate for six months from the date of the order, while allowing the mother to gather assets and bring or defend proceedings on the estate’s behalf. If the spouse brings proceedings within that period, further administration, including distribution, will be for the court hearing them. Otherwise, the mother may proceed to distribute the estate.
The court refused a second application for an additional grant to let the mother bring proceedings over the spouse’s occupation of one of the deceased’s properties. Whether that occupation was unlawful depended on the unresolved succession dispute, and the judge found a second grant would serve no additional purpose.