Mother of deceased entitled to extract letters of administration where separation agreement has not been voided by a court

Probate – grant of letters of administration - whether the respondent, as the deceased’s spouse is entitled to extract a grant of letters of administration to the deceased’s estate or whether they have waived that right in a separation agreement such that the applicant, being the deceased’s mother, is the person legally entitled to extract the grant - deceased died intestate – caveats lodged - conflicting applications for grant of administration from the deceased’s mother and the deceased’s spouse – background facts - separation agreement – mother contends that the spouse has waived all rights that they may have to the deceased’s estate in the separation agreement – validity of the separation agreement - extremely unwell and in dire financial straits - relevant legislation and rules - absence of a formal challenge to validity of the separation agreement - the courts had not yet reached a conclusion on the arguments raised by the spouse in the divorce proceedings at the time of the deceased’s death - not possible to determine those issues on the basis of affidavit evidence on what is supposed to be a non-contentious application - principle is that a separation agreement entered into in such circumstances is voidable rather than void - unless and until the separation agreement is voided by a court, it should be treated as presumptively valid - because of the death of the deceased, it will no longer be possible for the spouse to advance arguments as to the validity of the separation agreement in the context of in the divorce proceedings and, therefore, it may well be necessary for separate proceedings to be instituted – Court ordered that the mother is entitled to extract a grant of administration to the estate of the deceased - in order for this succession issue to be resolved, further proceedings will have to be brought – application for an ad litem grant - purposes of enabling the applicant to bring proceedings against the spouse in connection with the spouse’s occupation of one of the deceased’s properties - as an order has been made in favour of the applicant allowing her to extract a grant of administration proper, no additional purpose would be served by making a second order under s. 27(4), also in favour of the applicant – second motion refused –