Peter Yewie Umai Timereke v Duncan Martin Ferrie and William Henry Johns: Re Sannga (Deceased) (No 1)

• Jurisdiction: Papua New Guinea
• Judge: Pratt J
• Judgment Date: 31 May 1982
• Citation: (1982) N379
• Court: National Court
• Year: 1982
• Judgement Number: N379

National Court: Pratt J

Judgment Delivered: 31 May 1982

1 Wills—will by automatic citizen—capacity to make—customary law—conflicts of law re executors, administrators, beneficiaries and guardianship—composite will be referring to several documents

2 Wills—intestacy—partial under will—act prevails over intestacy provisions under Native Regulations (Papua) (Ch316) and customary law—informality permitted under the act—interlineations—presumption made before execution by testator where necessary to make sense—aliter for alterations—onus of proof on party contending against presumption

3 Wills—testamentary intent—whether existing at date—intent obtained from several documents

4 WILL BY AUTOMATIC CITIZEN—capacity to make—customary law—conflict of law re executors, administrators, beneficiaries and guardianship—composite will by referring to several documents.

5 INTESTACY—partial under will—Act prevails over intestacy provisions under Native Regulations (Papua) (Ch316 and customary law.

6 INFORMALITY permitted under the Act but question of presumptions still to be determined by common law and equity—relevance of cases dealing with soldier's and mariner's wills.

7 INTERLINEATIONS—presumption made before execution by testator where necessary to make sense—aliter for alterations—onus of proof on party contending against presumption.

8 TESTAMENTARY INTENT—whether existing at date of death—intent obtained from several documents.

Wills, Probate and Administration Act 1966, s6, s6A, s13, s16, s24, s30, s43, s88(2), s91, s92, Wills Act (South Australia), s12(2), Trustees and Executors Act, s13, Native Customs (Recognition) Act 1963, s6, s8(f), s9, Infants Act, s6, s8, Child Welfare Act 1961, Interpretation Act (Ch2), s98, Native Regulations Act 1908, s5, Native Regulations (Papua), reg142, reg143, reg144, Succession Act 1867, Wills Act (UK) 1837, 7 Will IV & 1 Vict., c26, s21

Cooper v Bockett (1846) 4 Moo PCC 419, In bonis Cadge (1868) LR 1 P & D 543, Birch v Birch 1 Rob Ecc 675, In bonis Swindin 2 Rob Ecc 192, Greville v Tylee (1851) 7 Moo PCC 320, In bonis White (1860) 30 LJP 55, Public Curator of Papua New Guinea v Rei Reinou and Ors [1978] PNGLR 253, Public Curator of Papua New Guinea v Public Trustee of New Zealand [1976] PNGLR 427, In the Estate of Knibbs [1962] 2 All ER 829, Whyte v Pollock (1882) 7 AC 405, In the Estate of Beech, Beech v Public Trustee [1923] P 46, Baumanis v Praulin (1980) 25 SASR 423, Lemage v Goodban (1865) LR 1 P & D 57, In bonis Fenwick (1867) LR 1 P & D 319, In bonis Petchell (1874) LR 3 P & D 153, In re Resch's Will Trusts [1969] 1 AC 514, In bonis Matthew Leese (1862) 2 Sw & Tr 442, Geaves v Price (1863) 3 Sw & Tr 71, In bonis Graham (1863) 3 Sw & Tr 69, Follett v Pettman (1883) 22 Ch D 337, Anis v Anis [1977] PNGLR 5, In the Land and Goods of Doa Minch [1973] PNGLR 558, Re Bimai–Noimbano, Deceased [1967–68] PNGLR 256 and Jordan v Edwards [1979] PNGLR 420 referred to

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Pratt J: The present matter has come before me by way of special case stated under O38 r1 of the National Court Rules. The facts upon which the matter was argued are as follows:

One JAMES ALLAN SANNGA was born on 27 November 1949 and died on 18 July 1979. He was a member of the Sikda Clan of Erave in the Southern Highlands, previously a part of that area of the country called Papua, and was an automatic citizen of Papua New Guinea domiciled in the country at the time of his death. He died leaving a widow and two children, one EDWARD born on 4 January 1976 and the other DUNCAN born on 9 June 1978. The marriage was a valid customary marriage entered into in March 1975 and on his death he left certain monies by way of travellers cheques and bank deposits together with shares in various companies which in the final analysis gave him a major interest in two substantial hotels in the country.

The defendants to the present action cannot be classed as administrators of the deceased's estate under customary law of the Sikda Clan. Apparently no land is involved in the estate, either under the Torrens system, the Land (Tenure Conversion) Act or by custom.

Paragraph 6 of the statement of facts says:

"The deceased made or purported to make a will or wills or other testamentary instruments or to give instructions for the preparation of such instruments as are annexed to the affidavit of testamentary scripts filed herein."

This paragraph refers to a number of documents being (1) a document dated 13 October 1976, in handwriting, (2) a draft typed document forwarded by Messrs Francis & Francis to the deceased on 13 April 1977, being in the form of a formal will, (3) a letter apparently from the deceased to Messrs Francis & Francis dated 6 May 1977, suggesting certain changes to the previous mentioned document, (4) a reply to that letter from Messrs Francis & Francis dated 17 May 1977, (5) a further response, apparently in the handwriting of the deceased, forwarded to Messrs Francis & Francis on the 4 June 1977, containing a number of suggestions, and (6) a reply in response to this final leter of the deceased from his solicitors dated the 28 June 1977, and there the correspondence ended. These documents are exhibited to both affidavits of Duncan Martin Ferrie, the first defendant herein, sworn on 19 May 1981 and 4 June 1981. In the affidavit of 4 June 1981 the second page of the document listed number (5) has been omitted, and I have proceeded on the basis that such omission was by oversight. Any reference by me to such document is based on the document annexed to the affidavit of 19 May 1981. For the purposes of this Case Stated I have assumed that the signatures of the witnesses in document No. 1 are genuine and that the witness DM Ferrie is the first defendant herein.

In addition to the above facts, certain matters were agreed to by counsel at the conclusion of Mr Haynes' submissions in chief. They are:

1. In all documents written by the deceased a reference to Edward is to the deceased's son.

2. The handwriting in the letters purporting to be written by the deceased is in fact his writing and the signatures are his signatures.

3. The deceased intended the document of 13 October 1976, excluding interlineations, to take effect as a will, as at 13 October 1976.

4. All the documents (annexed to the affidavit of Mr Ferrie) interrelate as they appear to interrelate.

It should be noted that in point 3 above, reference is not made to the testator's intention at the time of his death.

By way of explanation I should point out that submissions in this matter were made before me in October of last year before the Revised Acts came into operation. In order to prevent any misunderstanding I shall therefore continue to refer to the Acts by their old section numbers and names. Because the matter will be an on–going one I shall also refer to the Revised Acts in brackets by chapter and section number, when I think it may be of future assistance.

The following sections of the Wills, Probate and Administration Act, s6, s13, s16, s24 and s43, should be noted ((Ch291), s2, s10(2), s11, s19 and s25).

S6 of the Wills, Probate and Administration Act reads:

"Nothing in this Act contained applies to or in relation to native land."

S13 of the Wills, Probate and Administration Act reads:

"The application of this Division extends to and in relation to any property the rights to or in which are regulated by native custom insofar only as any such rights may, by that custom, devolve or pass by will or in a manner analogous thereto."

S16(1) of the Wills, Probate and Administration Act provides inter alia:

"A person may devise, bequeath or dispose of by his will executed in accordance with this Division all real estate and all personal estate to which he is entitled . . . "

S24(1) of the Wills, Probate and Administration Act reads:

"Where a person, to whom or to whose wife or husband a beneficial devise, legacy, estate, interest, gift or appointment of or affecting real or personal estate (other than a charge or direction for the payment of debts) is given or made by a will, attests the execution of the will, the devise, legacy, estate, interest, gift or appointment is, so far only as concerns the person so attesting the execution of the will or...