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Intestate’s brother contests husband’s powers of administration

20 Oct 2023

| Author: Andrea Hilton

High Court Rules 2016 – summary judgment – Administration Act 1969 – Property (Relationships) Act 1976 – intestacy – spousal separation – estate administration – letters of administration – contracting out of Administration Act – recall of letters of administration – Tod v Tod [2015] NZCA 501 – Warrender v Warrender [2013] NZHC 787

O’Donoghue v Comia [2023] NZHC 2735.


Alan O’Donoghue was married to Marc Comia, but they were estranged at the time of his death. Before Alan died intestate, the couple had entered an agreement purporting to settle their relationship property.

The agreement recorded the husbands’ dispute over the duration of their relationship and was “in full and final settlement of all property claims each party has against the other, under any statutory enactment, in equity or in common law”. They acknowledged the agreement did not comply with s 21F s 21F of the Property (Relationships) Act 1976 and Comia chose not to obtain independent legal advice.

Upon Alan’s death, Comia was granted letters of administration in common form. When Comia applied, he knew that Alan’s brother, Russell O’Donoghue, was intending to be appointed administrator. Knowing that O’Donoghue would claim the agreement excluded Comia and that he had priority under the Administration Act 1969, Comia lodged a caveat against the issue of letters of administration to the plaintiff. Despite this, Comia did not annex the agreement to his affidavit in support of his application.

O’Donoghue applied to recall the letters of administration granted to Comia, and for a fresh grant of letters to be made to him. Comia applied to sustain the original grant of letters.

O’Donoghue claimed the agreement excluded Comia from benefitting from the estate and from being appointed administrator. Comia claimed the agreement did not contract out of s 77 of the Administration Act 1969 and further, it was unenforceable because it did not comply with s 21F.

The parties agreed that if Comia did not have a beneficial interest in the estate, the plaintiff was entitled to the grant of letters of administration.

Applicable principles: Whether parties can contract out of s 77 – whether expedient to remove grant – whether grant obtained under false suggestion – whether revocation ensures integrity of court’s processes – whether grant justified by applicant – whether circumstances affect priority for grant – whether grant is expedient – whether agreement expressly or impliedly contracts out – whether Agreement binding upon death – whether agreement is valid.

Held: Letters of administration recalled. Russell O’Donoghue was appointed to administer his brother’s estate.

Following Warrender, it was permissible for parties to contract out of s 77, either impliedly or expressly. The agreement contracted out of s 77. On the facts, and to preserve the integrity of the court, the grant to Comia should be recalled. It was expedient to grant letters of administration to O’Donoghue. Comia’s status relied entirely on the validity of the agreement and determination of that issue was for the Family Court.

O’Donoghue was ordered to apply to the Family Court for a declaration regarding the agreement under s 21H of the PRA. Should the Family Court decide the agreement is invalid, leave is reserved for Comia to apply for appointment in O’Donoghue’s place.


After 14 years as general counsel for a local authority, Andrea Hilton is now a sole practitioner practising local government law

ODonoghu 20231012-ODonoghue V Comia

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