New Zealand Law
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You could still apply to be administrator of the will even if you were separated, if there is no one else available to administer the estate. But if you are concerned about being impartial, you can appoint someone else. If you want to be appointed, then you should instruct your lawyer to make the usual application. If his lawyer has said that she won't oppose the appointment, then you should do so.
The person who may otherwise inherit your husband's share, could object to you being appointed as being impartial, because you have an interest in preserving your own share of the estate.
Any application to administer an estate is filed in the High Court. The caveat he has filed is however a different sort of caveat from that in the Administration Act, which is intended to prevent administration of a will, on the grounds that the will is defective in some respect. Without seeing the caveat on the property I am unsure why that has been lodged, but it is a stop on registration against the title to the land. It will need to be removed at some stage, but you should get comprehensive legal advice from your own lawyer on the application for administration of the estate, which is not something I would suggest you can do yourself. Similarly, the caveat will need to be looked at. If you were married for more than three years, then the estate will be divided equally in any event under the Property Relationships Act. If the children are his children, then his estate will pass partly to you and partly to them
Those persons who have an interest in the estate are you and the children. Now that I understand that the children are his, then I would say it is even more appropriate that you be the administrator of the estate, because you would be protecting the interests of the children. Even though you have been separated, it would be difficult for anyone to challenge your appointment. If you are appointed by the High Court, which is the standard procedure, then you would be protected because your interests, and those of the children are really the only interests involved in the estate where there is no will. Do you have a concern that someone else may challenge your appointment? Who would that person be?
If the will was not signed, then you need to apply for letters of administration because the will is not valid. When you apply for letters of administration, this is not done as a public application in open court. The papers are filed with the High Court, and are not sent to anybody else. So my suggestion is, that you should make the application, and if this old friend wants to challenge the grant of letters of administration to you, he would need to spend a serious amount of money to do so. And, without a will, the estate will pass to you and the children in any event so making the application to oppose the grant to you would be seen by the court as a waste of time.
You should just apply for letters of administration. If your husband's lawyer does not oppose, this should happen without any difficulty, and you should do so promptly to get the estate wound up. If this friend is owed money, he will need to make a claim to the estate. That is another reason for getting the application made, because if he does not claim against the estate within six months of the grant, he will miss out. If he does deal with this within time, then any claim will need to be dealt with from the assets of your husband's estate.
Administration of estates is a complicated area of law. But an experienced lawyer will be able to navigate through these difficulties without too much trouble.
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