O’DONOGHUE v COMIA [2023] NZHC 2735

O'DONOGHUE v COMIA [2023] NZHC 2735 [29 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-000286[2023] NZHC 2735UNDER the High Court Rules 2016IN THE MATTER OF the estate of ALAN O'DONOGHUE ofChristchurch, DeceasedBETWEEN RUSSELL O'DONOGHUEPlaintiffAND MARC LESTER PANSOY COMIADefendantHearing: 21 September 2023Appearances: D Foster / T Andrews for the PlaintiffD Ryken / R Grand for the DefendantJudgment: 29 September 2023JUDGMENT OF ASSOCIATE JUDGE BRITTAINThis judgment was delivered by me on 29 September 2023 at 4 pm.Pursuant to Rule 11.5 of the High Court Rules...Registrar/Deputy RegistrarSolicitors / Counsel:Thomson Wilson, WhangāreiRyken & Associates, AucklandIntroduction[1] Alan O'Donoghue (the deceased) died intestate in late December 2021. He issurvived by his husband, the defendant, Marc Comia.[2] The deceased and Mr Comia married in 2016. The couple later separated butthe precise date of separation is in dispute. It appears to have been some time in 2019.There is no separation order. There is a dispute regarding whether they reconciledin 2021.[3] The deceased is not survived by any children. The deceased's mother hasdisclaimed any interest in the deceased's estate.[4] On 20 September 2022, the Court granted letters of administration toMr Comia.[5] The plaintiff, Russell O'Donoghue, is the deceased's brother. Mr O'Donoghueclaims that Mr Comia is not beneficially entitled to the deceased's estate, and thereforenot entitled to be administrator, due to a settlement agreement between the deceasedand Mr Comia dated 6 April 2020 (the agreement).[6] Mr Comia contends that the agreement, as properly interpreted, does notcontract out of his statutory beneficial interest in the estate that arises under s 77 of theAdministration Act 1969, or alternatively, that the agreement is unenforceable becauseit does not satisfy the requirements of s 21F of the Property (Relationships) Act 1976(the PRA).[7] Mr O'Donoghue now applies, by way of summary judgment, for recall of thegrant of letters of administration to Mr Comia and for a fresh grant of letters ofadministration to Mr O'Donoghue. Mr Comia opposes that application and appliesfor defendant's summary judgment sustaining the grant of letters of administration tohim.[8] The parties agree that if Mr Comia has no beneficial interest in the estate, thenMr O'Donoghue is the beneficiary and the person entitled to a grant of letters ofadministration.[9] The cross-applications for summary judgment raise issues of fact and law,which I address in the following order:(a) the jurisdiction to recall a grant of letters of administration made incommon form;(b) contracting out of a statutory beneficial interest in an intestate estatethat arises under s 77 of the Administration Act;(c) the interpretation of the agreement;(d) the requirements of s 21F of the PRA; and(e) the appropriate relief in this case.The jurisdiction to recall a grant of letters of administration in common form[10] A grant of letters of administration in respect of an intestate estate is governedby pt 27 of the High Court Rules 2016 (HCR). Rule 27.35 relevantly provides:27.35 Order of priority for grant in case of intestacy(1) If a person has died wholly intestate, the right to apply for letters ofadministration of that person's estate is determined in accordance withthe order of priority set out in subclause (3).(2) Subclause (1) is subject to section 6 of the Administration Act 1969.(3) The order referred to in subclause (1) is as follows:(a) the first in priority is persons having a beneficial interest inthe estate, according to the order of priority set out insubclause (4):(b) the second in priority is the Attorney-General, if he or sheclaims bona vacantia on behalf of the Crown:(c) the third in priority is a creditor of the deceased, or any personwho, even though having no immediate beneficial interest inthe estate, may have a beneficial interest in the event of anaccretion to it.(4) Persons having a beneficial interest in the estate are entitled to a grantof administration in the following order of priority:(a) the surviving spouse or civil union partner or de facto partnerentitled to succeed on the intestacy, if paragraph (b) does notapply and his or her beneficial interest in the estate is notaffected,—(i) in the case of a surviving spouse, by section 12(2) ofthe Matrimonial Proceedings Act 1963 (as applied bysection 191(3) of the Family Proceedings Act1980); or(ii) in the case of a surviving spouse or a surviving civilunion partner, by section 26(1) of the FamilyProceedings Act 1980; or(iii) in the case of a surviving de facto partner, bysection 77B of the Administration Act 1969; or(iv) in every case, by the choice of option A undersection 61 of the Property (Relationships) Act 1976:(e) brothers and sisters of full or half blood, or, failing them, theissue of any such brother or sister who has died during thelifetime of the deceased:[11] The surviving spouse has priority, unless one of the exceptions in r 27.35(4)(a)and (b) applies. None of the exceptions in r 27.35(4)(a) apply in this case. Theexception in r 27.35(4)(b) is not relevant, it relates to succession on intestacy in theevent a deceased is survived by a spouse and one or more de facto partners.[12] Rule 27.35(2) provides that the order of priority of rights of administrationprescribed in r 27.35(4) is subject to s 6 of the Administration Act:6 Discretion of court as to person to whom administration isgranted(1) In granting letters of administration with or without a will annexed, oran order to administer with or without a will annexed, in respect of theestate of any deceased person or any part thereof, the court shall haveregard to the rights of all persons interested in the estate of thedeceased person or the proceeds of sale thereof, and, in particular,administration with a will annexed may be granted to a devisee orlegatee; and any such administration may be limited in any way thecourt thinks fit:provided that, subject to the provisions of subsection (2), where thedeceased died wholly intestate as to his or her estate, administrationshall be granted to some 1 or more persons beneficially interested inthe estate of the deceased, if they make an application for the purpose.(2) Where by reason of the insolvency of the estate or other specialcircumstances the court thinks it necessary or expedient to do so, itmay—(a) grant administration to such person or persons as it thinksexpedient notwithstanding that some other person isappointed an executor or that, apart from this subsection,some other person would by law be entitled to a grant ofadministration:(b) grant probate to 1 or more of the executors appointed by awill, notwithstanding that some other person or persons mayalso be appointed as an executor or executors.(3) A grant may be made under subsection (2) notwithstanding that anyperson excluded from the grant would be competent to take it.(4) Before determining to exclude from any such grant any person who,apart from this section, would by law be entitled to, or be included in,the grant, and wishes to have, or to be so included in, the grant, thecourt shall have regard to his or her competency and solvency, his orher ability effectively to administer the estate, the rights of all personsinterested in the estate, and any changes in circumstances between themaking of the will (if any) and the time when the court is asked tomake the grant.[13] In summary, the person with the highest order beneficial interest in theintestate's estate will usually be appointed administrator, except where the estate isinsolvent or other special circumstances render it necessary or expedient to grantadministration to some other person, notwithstanding that the person appointed doesnot have priority under r 27.35 of the HCR.[14] I note that s 21 of the Administration Act also provides the Court withjurisdiction to remove an administrator where it is expedient to do so. The approachto an application under s 21 was set out by the Court of Appeal in Tod v Tod:11 Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [22] citing Farquhar v Nunns [2013] NZHC1670.(a) The starting point is the Court's duty to see estates properlyadministered and trusts properly executed.(b) This jurisdiction involves a large discretion which is heavily fact-dependent.(c) The wishes of the testator/settlor (evidenced by the appointment of aparticular executor or trustee) are to be given consideration, butultimately the question is as to what is expedient in the interests of thebeneficiaries.(d) Expedience is a lower threshold than necessity, and importsconsiderations of suitability, practicality and efficiency. Misconduct,breach of trust, dishonesty, or unfitness need not be established.(e) Hostility as between administrators/trustees and beneficiaries is not ofitself a reason for removal, but hostility will assume relevance if andwhen it risks prejudicing the interests of the beneficiaries.[15] Relevantly, r 27.36 of the HCR provides:27.36 Justification of entitlement to grant(1) When application is made for a grant of letters of administration ofthe estate of a person who has died wholly intestate and persons otherthan the applicant would have (if living and competent), under rule27.35, a priority higher than or equal to that of the applicant, theapplicant—(a) must prove to the satisfaction of the court—(i) that those persons are dead or incompetent; or(ii) that notice of the intended application has been givento them; or(b) must file their consents in writing, duly verified by affidavit.(3) The applicant must prove the identity and relationship with thedeceased of any person who, under rule 27.35, has a priority higherthan or equal to that of the applicant.(4) If the applicant is the surviving spouse or the surviving civil unionpartner, the applicant must prove that at the time of the death of thedeceased neither a decree of separation made under section 11 of theMatrimonial Proceedings Act 1963 nor a separation order made underPart 3 of the Family Proceedings Act 1980 was in force between theapplicant and the deceased.[16] An entitled person may apply without notice under r 27.4, referred to as anapplication in common form. The form of the without notice application is prescribedin sch 1 to the HCR, forms PR 3, 4, 5 or 6, depending on the relationship of theapplicant to the deceased.[17] Under r 27.34, the Court may recall a grant made in common form. Theapplication for recall may be an interlocutory application in certain circumstancesprescribed in r 27.34(2), none of which apply in the present case. Otherwise, theapplication for recall must be made in an ordinary proceeding under pt 5 of the HCR,as in this case, and the plaintiff is entitled to apply for summary judgment.[18] An application for recall can be combined with an application in solemn formfor a grant of letters of administration to an alternative administrator, as in this case.That is also an ordinary proceeding under pt 5 of the HCR, and the plaintiff is entitledto apply for summary judgment.[19] A grant of letters of administration may be revoked where it has been obtainedupon a false suggestion which obscures a defect in the title to the grant, whether thefalse suggestion is made fraudulently or ignorantly.2[20] The principle underpinning revocation is the maintenance of the public interestin ensuring the integrity of the Court's processes in making grants of administration.3For example, in Deng v Ye,4 the successful applicant for a grant of letters ofadministration had applied without notice based on her alleged standing as thedeceased's wife. The applicant had failed to disclose to the Court that the deceased'scapacity to marry the applicant had been disputed in a Chinese court. Palmer J recalledthe grant based on the public interest in ensuring the integrity of the Court's process.52 Halsbury's Laws of England (5th ed, 2021, online ed) vol 103 Wills and Intestacy at [851].3 Lee v Archer [2012] NZHC 3551 at [26].4 Deng v Ye [2018] NZHC 391, [2018] NZAR 560.5 At [39].Contracting out of a statutory beneficial interest in an intestate estate that arisesunder s 77 of the Administration Act[21] There is an apparent split in High Court authority as to whether a spouse maystill succeed under s 77 of the Administration Act in a situation where spouses haveseparated and a relationship property settlement has been executed, but the marriagehas not been formally dissolved. The Act itself is silent on whether such contractingout is permissible. Cases are rare because ordinary practice sees a separating spouseexecute a will on the conclusion of a relationship property settlement.[22] In Re Trotter,6 Mr and Mrs Trotter had separated eight years prior toMr Trotter's death. The two had concluded a matrimonial property agreement aftertheir separation but never obtained a separation order. The agreement effected a finalsettlement between the parties and explicitly stated that it would be binding on death.Panckhurst J granted letters of administration to Mrs Trotter, holding that as thedeceased's surviving wife she had the sole beneficial interest in his estate, regardlessof the property settlement.7[23] In Warrender v Warrender,8 this Court was faced with a similar set of facts.Mr and Mrs Warrender had separated in 1995 and shortly thereafter executed aseparation agreement. The marriage was never dissolved and Mr Warrender diedintestate in 2010. Mrs Warrender sought a grant of letters of administration which wasopposed by Mr Warrender's siblings.[24] Woodhouse J held that, as a matter of policy, contracting out of an interestunder s 77 was permissible.9 The Judge distinguished Re Trotter on the basis that therehad been no argument on contracting out and no indication that Panckhurst J had beenreferred to s 77.10[25] In support of his position on contracting out, Woodhouse J referred toCanadian authority, including the following statement from Ford JA in Re Rist:116 Re Trotter HC Christchurch CIV-2009-409-2584, 10 May 2010.7 At [10] and [13].8 Warrender v Warrender [2013] NZHC 787, [2013] NZFLR 565.9 At [18].10 At [32].11 Re Rist [1939] 2 DLR 644 (ABSC(AD)) at [23].There is I think ample authority for the proposition of law that a wife mayforfeit her rights upon her spouse's intestacy by express agreement made eitherprior or subsequent to the marriage and indeed that an express or impliedagreement may exist between the spouses excluding the survivor from anyclaim to the other's property on intestacy.[26] In Re Rist, the contracting out clause expressly referred to contracting out of aright to succeed on an intestacy. However, in Warrender, Woodhouse J held that thepoint of principle from Re Rist did not turn on an express contracting out.12[27] Woodhouse J found that the compromise effected by the relationship propertyagreement in Warrender was effective to contract out of s 77.13 Notably, the agreementalso included a clause providing that the agreement was binding on the death of oneor both parties.[28] Consistent with the principle in Re Rist, the learned authors of Dobbie'sProbate and Administration Practice suggest that all that is required to contract out ofa beneficial interest in the deceased's estate is an agreement which deprives thesurvivor of any interest in the deceased's property:14If the parties have signed a separation deed or relationship or matrimonialproperty agreement which deprives the survivor of any interest in thedeceased's property the grant will be made to the next of kin [29] Baker v Storm,15 a case decided after Warrender, concerned an application bythe deceased's daughter for a grant of letters of administration. Mr and Mrs Storm hadseparated and executed a separation agreement that contained similar provisions tothose in Re Trotter and Warrender, including a clause confirming that the agreementwas binding on the death of one or both parties.[30] The daughter's application was unopposed by the surviving spouse. Whata Jconsidered that the surviving spouse had priority to a grant of letters of administration,however, he exercised the Court's discretion under s 6 of the Act and appointed the12 Warrender v Warrender, above n 8, at [24].13 At [46].14 John Earles and others (eds) Dobbie's Probate and Administration Practice (6th ed, LexisNexis,Wellington, 2014) at [29.3.1].15 Baker v Storm [2018] NZHC 742.daughter as administrator on the basis that it was necessary and expedient.16 It isapparent that Whata J was not referred to Re Warrender or Re Rist, as there is nomention of those cases in his judgment.[31] The Law Commission has very recently reviewed the law on succession. Itnoted the inconsistency of High Court authority on this issue and commented on theundesirability of preventing contracting out:17Giving the surviving spouse entitlements under the intestacy regime isarguably inconsistent with the partners' intentions to conclude their propertymatters and sever the economic ties of their former relationship.[32] The Law Commission went on to state its preliminary view as to how the issueshould be addressed in a new statute governing succession law:18Our preliminary view is that an agreement between former partners on theirseparation that purports to be a full and final settlement of relationshipproperty claims should be presumed to be full and final settlement of thesurviving partner's claims and entitlements under the new Act unless theagreement provides otherwise.[33] I adopt the law on contracting out as stated by Woodhouse J in Warrender. Theissue for me to determine is whether Mr Comia has expressly or impliedly contractedout of his statutory entitlement to the deceased's estate, by entering into the agreement.Interpretation of the agreement[34] The agreement was drafted by a firm of solicitors, Webb Ross McNabKilpatrick Limited (WRMK). It was drafted and executed after the deceased andMr Comia had separated and settled the sale of a jointly owned residential propertyfor which WRMK had completed the conveyancing.[35] WRMK acted for the deceased in respect of the agreement. Mr Comia did notreceive independent legal advice. WRMK encouraged Mr Comia to obtainindependent legal advice on several occasions before execution of the agreement.16 At [10].17 Law Commission Review of Succession Law: Rights to a person's property on death (NZLC IP46,2021) at [11.16].18 At [11.30].[36] The relevant provisions of the agreement are as follows:BackgroundA. Alan and Marc were married in June 2016 but have separated (theydisagree about their separation date).B. They owned a property together at 15 Old Parua Bay Road,Whangarei. The property has been sold.C. Alan and Marc have reached agreement about the division of the saleproceeds and want to make this agreement to record that agreeddivision and confirm to each other that they will bring no furtherclaims of any sort against each other in [the] future no matter what.Agreed1. Division of Property1.1 The parties acknowledge that the net sale proceeds of the property at15 Old Parua Bay Road Whangarei are $195,416.16 (plus any interest)and are held in the trust account of WRMK Lawyers in the parties'joint names.1.2 The parties agree that those funds shall be divided as follows:(a) $11,000 to Marc.(b) The balance to Alan.1.3 The parties will do all things and sign all documents necessary toimplement and give effect to the terms contained in this agreement.2. Final Settlement2.1 This agreement is in full and final settlement of all property claimseach party has against the other, under any statutory enactment, inequity or in common law. They will each retain the other property anddebt in their sole name and possession.2.2 The parties disagree about whether the equal sharing regime of theProperty (Relationships) Act 1976 applies to their relationshipproperty. In particular:(a) Marc says the relationship had a duration of more than threeyears and therefore he is entitled to share equally in allrelationship property including the sale proceeds of the familyhome. By entering into this agreement he is agreeing to waiveany such claim to the sale proceeds and take less than he sayshe is entitled to.(b) Alan says the relationship had a duration of less than threeyears and therefore the sale proceeds of the family home areto be divided in accordance with the parties' respectivecontributions. By entering into this agreement, he is agreeingto pay Marc more than he says Marc is entitled to.(c) Regardless of their difference in opinion about relationshiplength they both agree to the same final outcome described inclause 1.2.2.3 The parties agree this agreement does not comply with the formalitiesrequired by section 21F of the Property (Relationships) Act 1976 butconsider that the amount involved does not justify the cost, time andexpense of them each obtaining complete advice as to the effects andimplications of this agreement. Marc acknowledges he has beenencouraged by Alan to obtain independent legal advice and haselected not to do so.2.4 They further acknowledge the ability of them both to take and obtainsuch advice is made more difficult, costly and time consuming by theoutbreak of COVID-19 and the requirements of Alert Level 4.2.5 They therefore both ask any Court considering this agreement to takethose factors into account and to give effect to this agreement to themaximum extent possible, including to prevent either of them fromcommencing or continuing any sort of proceedings against the otherunder the Property (Relationships) Act 1976.[37] Mr Comia left the following handwritten message, which he initialled,underneath his signature at the end of the agreement:P.S. I DON'T WANT TO FIGHT ANY LONGER. PLEASE LOOK AFTERYOURSELF. THANK YOU FOR EVERYTHING AND I'M SORRY. GODBLESS AND KEEP SAFE. I AM STILL HERE IF YOU NEED SUPPORT.I LOVE YOU. GOODBYE.[38] Counsel for Mr Comia, Mr Ryken, submitted that the compromise effected bycl 2.1 was limited to "property claims", and that those words do not encompasssuccession on intestacy. He further argued that there is no provision in the agreementconfirming that it applies on the death of one of the parties. Therefore, Warrender isdistinguishable, and the agreement does not amount to a contracting out of Mr Comia'sstatutory entitlement under s 77 of the Administration Act.[39] Counsel for Mr O'Donoghue, Mr Foster, argued that the meaning of "propertyclaims" in cl 2.1 of the agreement extends to all possible claims against the estate ofeither of the parties. Mr Foster submitted that the Court could take extrinsic evidenceinto account when interpreting the agreement, including:(a) An email from the deceased to WRMK on 2 April 2020, which includedthe statement:And make it binding. No further claim.(b) A file note, dated 3 April 2020, created by the WRMK solicitorhandling the matter, which recorded a telephone discussion between thesolicitor and Mr Comia:I confirmed that I would draft an agreement and it would saythat the 11,000 is full and final. Marc agreed. He added thathe would not make any claims against Alan's will either. Thenhe said he would like their dog if Alan dies. He wouldn't wantthe dog going anywhere else. I said I would pass that on.[40] The file note was produced in evidence by Mr O'Donoghue. The solicitor thatmade the file note has not provided an affidavit in this proceeding. The note isinadmissible to prove the contents of the statement alleged to have been made byMr Comia.[41] However, I am able to interpret the agreement without resort to the extrinsicevidence referred to by Mr Foster. Recitals A–C of the agreement are sufficient toprovide background. They clearly indicate that the parties were seeking a clean break.[42] The agreement does not include a clause providing that the agreement shallcontinue to apply on the death of one of the parties. However, the existence of such aclause is not determinative of the parties' objective intention. The terms of theagreement must be considered in their entirety.[43] The critical provision is cl 2.1, which provides for the "full and final settlementof all property claims each party has against each other, under any statutory enactment,in equity or in common law".[44] As Woodhouse J noted in Warrender, the statutory right of succession providedby s 77 of the Administration Act is a provision dealing with the distribution of privateproperty; the section is concerned with rights to private property.1919 Warrender v Warrender, above n 8, at [19].[45] The reference in cl 2.1 to "property claims under any statutory enactment"is sufficiently broad to encompass Mr Comia's rights under s 77, notwithstanding theabsence of a clause referring to the compromise enduring on the death of one of theparties. If the agreement is binding, then Mr Comia has contracted out of his right tosuccession.The requirements of s 21F of the PRA[46] The PRA is a statutory code governing relationship property and it applies tothe deceased and Mr Comia as spouses. Under s 21 of the PRA, spouses may contractout of provisions of the PRA, and under s 21A, spouses may settle any differencesbetween them concerning property by agreement.[47] Sections 21F and 21H provide:21F Agreement void unless complies with certain requirements(1) Subject to section 21H, an agreement entered into under section 21 orsection 21A or section 21B is void unless the requirements set out insubsections (2) to (5) are complied with.(2) The agreement must be in writing and signed by both parties.(3) Each party to the agreement must have independent legal advicebefore signing the agreement.(4) The signature of each party to the agreement must be witnessed by alawyer.(5) The lawyer who witnesses the signature of a party must certify that,before that party signed the agreement, the lawyer explained to thatparty the effect and implications of the agreement.21H Court may give effect to agreement in certain circumstances(1) Even though an agreement is void for non-compliance with arequirement of section 21F, the court may declare that the agreementhas effect, wholly or in part or for any particular purpose, if it issatisfied that the non-compliance has not materially prejudiced theinterests of any party to the agreement.(2) The court may make a declaration under this section in the course ofany proceedings under this Act, or on application made for thepurpose.[48] The agreement does not comply with the requirements of s 21F(3)–(5).Mr Comia did not receive independent legal advice and the parties' signatures werenot witnessed by a lawyer providing the required certification. The agreement istherefore prima facie void.[49] Mr Foster submitted that there are no formalities required for a contracting outof rights under s 77 of the Administration Act, other than the usual principlesapplicable to enforceability of contracts, which are not in question. Mr Foster arguedthat the contracting out of s 77 could be severed from the relationship propertyprovisions.[50] I reject that submission. Clause 2.1 of the agreement only operates toeffectively contract out of s 77 of the Administration Act if it is first a valid settlementof all property claims under the PRA. If the agreement is void under s 21F, it is voidab initio.20 It would make for an absurd outcome if an agreement to "settle all propertyclaims" was void between living parties yet binding on death.[51] In regard to its recommendation of a new statutory presumption of contractingout of s 77 of the Administration Act (see para [32] above) the Law Commissionstated:21Our preliminary view is the presumption should apply equally to anon-complying agreement that a court has ordered should be given effect.[52] This comment by the Law Commission supports my view that if contractingout of s 77 of the Administration Act is by a relationship property agreement, then thatagreement must either meet the requirements in s 21F or be validated under s 21H.[53] Accordingly, the agreement will only amount to Mr Comia contracting out ofhis statutory right of succession under s 77 of the Act, if cl 2.1 of the agreement isvalidated under s 21H of the PRA.20 Property (Relationships) Act 1976, s 21M.21 Law Commission, above n 17, at [11.30] note 16.[54] In the present context, it is not open to this Court to rule on the validity of theagreement. The relevant application must be commenced in the Family Court.22 Thediscretion to order validation under s 21H lies with that Court. Such an applicationwill determine whether the division of relationship property pursuant to the agreementstands, which will have consequences for determining the assets that form part of thedeceased's estate. The validity of the agreement goes to the substance of the estateand who should administer it.[55] It appears that there are grounds for the Family Court to exercise its discretionunder s 21H in favour of giving effect to the agreement, given cls 2.3–2.5 of theagreement. These clauses confirm that the parties were aware of their non-compliancewith the formalities under s 21F; explain the parties' reasons for not complying; andrecorded their intention that any Court considering the agreement take those factorsinto account to "give effect to this agreement to the maximum extent possible".The appropriate relief in this case[56] At the time that Mr Comia applied for a grant of letters of administration, hewas aware that his beneficial entitlement to the estate was disputed. Mr Comia knewthat Mr O'Donoghue had instructed a solicitor to act for him in respect of the estateon the basis that Mr O'Donoghue anticipated being appointed administrator.[57] On 17 March 2022, Mr O'Donoghue's solicitor held a Zoom call withMr Comia. During that call, the solicitor expressed her view to Mr Comia that he didnot have a claim against the estate. Mr Comia plainly appreciated thatMr O'Donoghue was likely to apply for a grant of letters of administration because,on 31 March 2022, Mr Comia lodged a caveat against the issue of letters ofadministration.[58] When Mr Comia applied for a grant of letters of administration to him incommon form, he elected not to disclose the agreement in his affidavit even though heknew that Mr O'Donoghue was claiming priority to the estate based on the agreement.22 Property (Relationships) Act, s 22.It is in the public interest that the grant of letters of administration to Mr Comia incommon form be recalled, to ensure the integrity of the Court's processes.[59] Whether Mr Comia is beneficially entitled to the estate under s 77 of the Actrequires a determination of the validity of the agreement under the PRA. Thatapplication can be brought by an administrator of the deceased's estate or byMr Comia in his capacity as a party to the agreement. There is nothing to compelMr Comia to bring the application in the latter capacity.[60] It is not appropriate for Mr Comia to be a party to a proceeding in the FamilyCourt in two capacities: as administrator of the deceased's estate and as a party to theagreement in his own right. Therefore, it is necessary and expedient for a grant ofletters of administration to Mr O'Donoghue.[61] As indicated, the validity of the agreement goes to the substance of the estate.The Court has a duty to ensure that estates are properly administered. It is appropriatethat Mr O'Donoghue be directed to commence a proceeding in the Family Court,seeking a declaration under s 21H as to the extent that the agreement has effect, if atall.Result[62] I make the following orders:(a) the plaintiff's application for summary judgment is granted;(b) the defendant's application for summary judgment is dismissed;(c) the grant of letters of administration to the defendant is recalled;(d) the plaintiff is appointed as administrator of the deceased's estate;(e) the letters of administration authorise the plaintiff to:(i) administer the deceased's estate;(ii) demand and recover whatever debts may belong to thedeceased's estate;(iii) pay whatever debts the deceased owed, so far as the estateextends;(f) the plaintiff is directed to apply to the Family Court for a declarationunder s 21H of the PRA, in respect of the agreement;(g) if the Family Court exercises its discretion under s 21H in favour of thedefendant, declining to make a declaration that cl 2.1 of the agreementhas effect, then leave is reserved to the defendant to make an applicationfor the removal of the plaintiff as administrator of the deceased's estateunder s 21 of the Administration Act, and for the appointment of thedefendant in his place.[63] My preliminary view is that the defendant should pay the plaintiff's costs on a2B basis, however I note that the defendant has recently obtained a grant of legal aid.I make the following directions regarding costs:(a) within three working days of this judgment, the defendant shallprovide the plaintiff with evidence of his grant of legal aid;(b) the plaintiff may file a memorandum seeking costs, of no more thanfive pages, by 13 October 23;(c) the defendant may file a memorandum regarding costs, of no more thanfive pages, by 20 October 23;(d) I will determine costs on the papers.______________________Associate Judge Brittain