Between 77, death and divorce

Alan O’Donoghue (Alan) and Marc Comia (Marc) married in 2016.  They subsequently separated and later entered into a settlement agreement dated 6 April 2020 (the Agreement) recording the division of relationship property.  It was common ground that the Agreement did not meet the formal requirements of an agreement to contract out of the Property (Relationships) Act 1976 (the PRA).

Alan died intestate in late December 2021 without having reconciled with Marc.

Marc was granted letters of administration on 20 September 2022 on the basis that as the Agreement did not provide that it applied on the death of one of the parties, it did  not contract out of Mr Cornia’s statutory entitlement as a surviving spouse under s 77 of the Administration Act 1969.

Alan’s brother Russell did not agree and applied for a recall of the grant of administration and for a fresh grant of letters of administration to be made to him on the basis that Marc  is not beneficially entitled to Alan’s estate on account of the Agreement and that accordingly, Marc is not entitled to be the administrator of Alan’s estate.

The position of a surviving spouse following separation is unclear.  As noted at [21]:

Relevantly cl 2.1 of the Agreement provided for the “full and final settlement of all property claims each party has against each other, under any statutory enactment, in equity or in common law”.

As noted at [44] and [45]:

Separately as noted at [31] and [32]:

The end result was that the High Court was of the view that Marc, who was appraised of Russell’s position, should not have sought letters of administration.  That does not mean that Marc may not be the person who is beneficially entitled to Alan’s estate on an intestacy.  Nor does it mean that he is.  Determination of that matter will require an application to the Family Court to determine the status of the Agreement for the reasons set out at [59] to [61]:

References:

• O’Donoghue v Comia [2023] NZHC 2735
• Re Trotter HC Christchurch CIV-2009-409-2584, 10 May 2010.
• Warrender v Warrender [2013] NZHC 787, [2013] NZFLR 565
• Re Rist [1939] 2 DLR 644 (ABSC(AD))