Published: Wed, Sep 15th, 2010

The recent High Court decision in re Trotter is a timely reminder of the importance of having a current Will, particularly for parties who have separated.

Murray and Christine Trotter separated in May 2001 without a separation agreement or the making of a separation order. In October of that year a matrimonial property agreement was concluded that provided for the transfer of the matrimonial home into the sole ownership of Murray and the payment to Christine of half the equity in the home.

Murray occupied the home until his death in 2009 when he died intestate (i.e. having not made a Will). Christine applied for Letters of Administration giving her control of the estate, on the grounds that she had the sole beneficial interest in the estate.

The Court noted the following:

Regardless of the fact that the parties had executed a matrimonial property agreement, Christine had a beneficial interest in the estate as a surviving wife.

Murray and Christine separated by mutual agreement and did not obtain a separation order from the Family Court and therefore Christine was not prevented from obtaining Letters of Administration.

There were no other potential claimants.

The Court found that no cause had been shown why Christine should not be granted Letters of Administration. Christine had the sole beneficial interest in the estate and therefore took priority under the High Court Rules.

If you wish to have a Will prepared or updated please contact Raechel Pedrotti of this office.

Your Will should be reviewed regularly or any time your personal situation changes. Some changes to personal circumstances that should trigger the execution of a new Will include entering into a new relationship, ending an existing relationship, having children, death of a beneficiary or executor or if your executor is no longer able to act as an executor, perhaps due to ill health or old age.

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