A deceased doctor’s mother must wait six months before distributing her offspring’s estate, so the deceased’s spouse has time to bring proceedings challenging the validity of their separation agreement.
In a judgement, Ms Justice Nuala Butler gave permission for the mother to extract a grant of administration of the estate but placed a six-month stay on the distribution of assets of the deceased, who died intestate and childless last year.
In her ruling, the judge did not identify the genders of the deceased or their spouse, who wed about a decade ago and separated a year after their marriage.
The case arose after both the deceased’s mother and spouse lodged an application with the probate office for a grant of administration of the “relatively substantial” estate, the judge said.
The mother then applied to the court for entitlement to extract a grant of letters of administration of the estate.
The mother relied on a separation agreement, drawn up by her offspring and signed by the spouse in 2013, that contained a clause stating the parties “mutually surrender and renounce all rights either of them may have under the Succession Act, 1965, to any share or legal right in the estate of the other on the other’s death”.
The judge noted the agreement specified the parties were waiving their respective rights to the extraction of a grant of probate or administration of the estate of the other.
Another clause also declared that the parties agreed they would not issue proceedings after the death of the other seeking provision from that person’s estate, the judge said.
Next of kin
The mother claimed the legal effect of the agreement, which also provided for a once-off payment by the deceased to the spouse, is that the spouse is no longer the deceased’s next of kin.
The spouse contended the agreement is invalid due to having been both mentally and physically unwell, as well as financially vulnerable, when it was executed. The spouse had been referred to a psychiatrist and was prescribed antidepressants some months before signing the document.
The spouse also claimed to have not had independent legal advice on the deal, which was alleged to have been manifestly improvident.
It was also not executed by the deceased and the spouse’s signature is undated and unwitnessed, the spouse further claimed.
Ms Justice Butler said that several years after the agreement the spouse instituted divorce proceedings seeking various orders which, if granted, would, in principle, have been contrary to the terms of the agreement, said the judge.
The deceased then filed a defence containing a counterclaim seeking a decree of nullity based on the spouse’s alleged lack of capacity to contract a valid marriage due to their psychological and/or psychiatric condition and/or immaturity, the judge noted.
These proceedings, which contain the spouse’s claim that the agreement was invalid, were live at the time of the doctor’s death.
Ms Justice Butler said it was not open to her to treat the separation agreement as conclusively invalid, as the case came before her in the High Court’s non-contentious probate list.
She said case law demonstrates that a separation agreement entered into due to fraud or duress will be voidable and can be set aside if it is clearly unconscionable. It is, however, treated as presumably valid unless and until it is voided by a court, she added.
The judge made an order allowing the mother to extract a grant of administration to the estate. The order specifically avoids declaring the mother’s entitlement to do so, in acknowledgement of the substantial issue between her and the spouse.
The succession issue and the validity of the agreement could only be resolved by the spouse bringing further proceedings, she said.
In a second application, the mother sought a grant under the Succession Act 1965 to allow her to bring proceedings requiring the spouse to leave the deceased’s property. This was refused by the judge.
