Re James Allan Sannga [1983] PNGLR 142

• Jurisdiction: Papua New Guinea
• Judge: Andrew J:
• Judgment Date: 03 June 1983
• Citation: [1983] PNGLR 142
• Court: Supreme Court
• Year: 1983
• Judgement Number: SC255

Full Title: Re James Allan Sannga [1983] PNGLR 142

Supreme Court: Kidu CJ, Kapi DCJ, Andrew J

Judgment Delivered: 3 June 1983

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RE JAMES ALLAN SANNGA

DECEASED

PETER YEWIE UMAI TIMEREKE

V

DUNCAN MARTIN FERRIE

AND WILLIAM HENRY JOHNS

Waigani

Kidu CJ Kapi DCJ Andrew J

25-26 November 1982

3 June 1983

WILLS — Making of — By automatic citizen — Absolute right to make statutory will — Limitations as to property that may be so disposed of — Customary land excepted — Wills, Probate and Administration Act 1966, ss 6, 6AInfra 171.1, 13Infra 147, 157.2 16Infra 146, 155.3, 14Infra 152, 161.4 — Native Regulations (Papua) regs. 142 to 154.

WILLS — Validity — Defects and irregularities not invalidating — Need for Will and clear testamentary intention — "Will" — Draft will and correspondence thereon — No clear testamentary intention — Wills, Probate and Administration Act 1966, s. 43Infra 152, 161.5.

WILLS — Probate and Administration — Partial intestacy — Personal representative under will also administrator of intestate estate — Whether other administrators may be appointed — Wills, Probate and Administration Act 1966, ss 6Infra 171.6, 13Infra 147, 157.7 72, 73, 90.

WILLS — Probate and Administration — Partial intestacy — Automatic citizen — Distribution of intestate estate — Distribution under statute — Customary law inapplicable — Wills, Probate and Administration Act 1966 Div. 6 Pt III.

WILLS — Making of — By automatic citizen — Appointment of guardians — Native and part native children — Appointment invalid — Infants Act 1956, s. 5.

The deceased an automatic citizen executed a valid will dated 13 October 1976, in which he disposed, inter alia, of personal property being shares in private companies. In 1977, the deceased gave instructions to his lawyers to draw up a new draft will. This having been done further instructions were sought and provided in correspondence between the lawyers and the deceased. On 18 July 1978, the deceased died without having executed another will.

In proceedings by relatives of the deceased disputing the validity of the will dated 13 October 1976, a case was stated for the direction of the court on certain propositions. On appeal therefrom:

Held

(1) As the case stated was heard by the National Court before 1 January 1982, the date on which the Revised Laws came into effect, the statutory law applicable was that applicable before that date.

(2) The combined effect of reg. 144 of The Native Regulations (Papua) and ss 6, 6A, 13, 14 and 16 of the Wills, Probate and Administration Act 1966, is that a native of Papua or an automatic citizen may make a statutory will subject to the restrictions that customary land or an interest thereto/therein may not be disposed of by such a will, and that certain other properties may not be disposed of by such a will unless such disposition is permitted by customary law.

(3) Section 43 of the Wills, Probate and Administration Act 1966, can only be invoked where there is in existence a will which is clearly intended to be a last will and testimony.

Public Curator of Papua New Guinea v. Public Trustee of New Zealand [1976] P.N.G.L.R. 427 at 430, 431 approved and applied.

(4) (Per Kapi DCJ) For the purposes of s. 43 of the Wills, Probate and Administration Act 1966 a "will" need not be a validly executed will under s. 18 provided it is a document or documents having the distinct character and nature of a will.

In the Estate of Knibbs [1962] 1 W.L.R. 852 at 855, 856 adopted.

(5) The only valid will in existence was the testamentary document dated 13 October 1976. Neither the draft will nor the draft will and correspondence thereon could be treated as a will, clearly intended to be a last will, for the purposes of s. 43 of the Wills, Probate and Administration Act 1966.

(6) With the exception of property covered by ss 6 and 13 of the Wills, Probate and Administration Act 1966, the effect of s. 92 of the said Act is that the personal representative appointed under the will in respect of the property disposed of by the will, is also the administrator of the intestate estate of the deceased.

(7) Where there are administrators validly appointed under a statutory will, and where there is a partial intestacy no other administrators may be appointed; (per Kapi DCJ) except by order of the court on the basis of the considerations set out in ss 72, 73, and 90 of the Wills, Probate and Administration Act 1966.

(8) Where there is a partial intestacy under a statutory will, Div. 6, Pt III, of the Wills, Probate and Administration Act 1966, makes exclusive provision for distribution of the intestate estate: customary law cannot be taken into account or override the statutory provisions.

(9) As a consequence of s. 5 of the Infants Act 1956, the guardianship of native children and part native children, remains exclusively the province of customary law, and accordingly the appointment of a guardian of such a child in a statutory will is ineffective.

Cases Cited

Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.

Barrs v. Bethell [1982] Ch. 294; [1981] 3 W.L.R. 874.

Baumanis v. Prauline (1980) 25 S.A.S.R. 423.

Bimai-Noimbano, Re [1967-68] P. & N.G.L.R. 256.

Clarke v. Bradlaugh (1881) 8 Q.B.D. 63.

Doa Minch, In The Lands and Goods of [1973] P.N.G.L.R. 558.

Knibbs, In the Estate of [1962] 1 W.L.R. 852; 2 All E.R. 829.

Lewis, In the Estate of [1974] 2 N.S.W.L.R. 323.

Lowe, Re [1949] V.L.R. 169.

Oyekan, Adeyinka v. Musendiku Adele [1957] 1 W.L.R. 870; 2 All E.R. 785.

Public Curator of Papua New Guinea v. Public Trustee of New Zealand [1976] P.N.G.L.R. 427.

R. v. Merionethshire (Inhabitants) (1844) 6 Q.B. 343.

R. v. Smith (1873) L.R. 8 Q.B. 146.

Rowson, In the Estate of [1944] 2 All E.R. 36.

S.C.R. No. 4 of 1980; Re petition of M.T. Somare [1981] P.N.G.L.R. 265.

S.C.R. No. 2 of 1981; Re s. 19 (1) (f) of The Criminal Code [1982] P.N.G.L.R. 150.

Selwood v. Selwood [1920] All E.R. Rep. 413.

Spicer, In the goods of [1949] L.R.P.D. 441.

Stable, Re [1919]L.R.P.D. 7

The State v. Wik Kor [1983] P.N.G.L.R. 24.

Appeal

This was an appeal from a case stated determined by Pratt J in the course of proceedings seeking to propound a will in solemn form.

Counsel

C.E.P. Haynes, for the appellant.

I. Sheppard, for the first and second respondents.

Cur. adv. vult.

3 June 1983

KIDU CJ: This appeal was argued during the November 1982 sittings of this Court. However, the commitments of the members of the Court in the last few months have not made it possible for an earlier judgment. This is not an apology, but merely an explanation for the benefit of the parties.

I deal with two preliminary matters contained in the submissions of the respondents:

"The respondent submits that two matters should be kept in mind:

(1) The appeal can only be from his Honour's answers to the questions asked. There was no question of appointing the Public Curator to administer the estate. The appeal is solely a review of his Honour's answers and questions of law, or both fact and law.

(2) The Statute law to apply is as provided in s. 13 of the Revised Laws Act 1973. All relevant matters occurred after 1 January 1976."

There is no question that whether the Public Curator can or cannot be appointed to administer the estate is not part of this appeal. It was never argued before the National Court and was not one of the questions referred to it by the parties.

As to the second preliminary point, I do not agree that the relevant Revised Laws are applicable to this case.

The case stated to the National Court was dated 13 October 1981. It was entertained by the National Court before 1 January 1982, (the date on which the Revised Laws came into effect). Section 21 of the Revision of the Laws Act 1973 provides as follows:

"The inclusion of a law in, or the exclusion of a law from, the Revised Laws does not affect any civil or criminal proceeding previously commenced under that law, but every such proceeding may be contained and everything in relation to it may be done in all respects as if the law had not been so included or excluded."

It seems clear that in this case the law applicable is the Wills, Probate and Administration Act 1967 applicable before 1 January 1982 and any other statutes applicable (i.e. not in the Revised Laws).

Of the eleven grounds of appeal, three (Nos. 1, 2 and 11) were abandoned when the appeal came on for hearing.

I set out the grounds argued:

"3.

(a) The learned Judge erred in law in holding that, with the exception of customary land and property referred to in s. 13 of the Wills, Probate and Administration Act, an automatic citizen is afforded the power to make a statutory will and thereby override any provisions of his customary law to the contrary.

(b) The specific reason why it is alleged that the learned Judge was wrong in law is:

(i) the Court should read into s. 16 (1) of the Wills, Probate and Administration Act,...