PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 1982 >> [1982] PGNC 18

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Timereke v Ferrie [1982] PGNC 18; N379 (31 May 1982)

N379


PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE


BETWEEN


PETER YEWEI UMAI TIMEREKE
Plaintiff


AND


DUNCAN MARTIN FERRIE
First Defendant


WILLIAM HENRY JOHNS
Second Defendant


W.S. No. 472 of 1981
Coram: Pratt. J.


13-14 October 1981
31 May 1982


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.


INTESTACY - partial under will - Act prevails over intestacy provisions under Native Regulations (Papua) Ch. No. 316 and customary law.


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.


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


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


Legislation:


Wills Probate and Administration Act 1966 - Ss. 6, 6A, 13, 16, 24, 30, 43, 88 (2) , 91, 92


Wills Act (South Australia) - S.12(2) Trustees and Executors Act - S.13


Native Customs (Recognition) Act - Ss. 6, 8(f), 9 Infants Act - Ss. 6, 8


Child Welfare Act 1961


Interpretation Act - Ch. No. 2, s.98


Native Regulations Act 1908 - S.5


Native Regulations (Papua) - Regs. 142, 143, 144


Succession Act 1867


Wills Act (U.K.) 1837-7 Will IV& 1 Vict., Ch. No.26, s.21


Cases cited :


Cooper v. Boekett (1846) 4 Moo. P.C.C. 419


In bonis Cadge (1868) L.R. 1 P. & D. 543


Birch v. Birch [1848] EngR 1024; 1 Rob. Ecc. 675


In bonis Swindin 2 Rob. Ecc. 192


Greville v. Tylee [1851] EngR 219; (1851) 7 Moo P.C.C. 320


In bonis White (1860) 30 L.J.P. 55


Public Curator of Papua New Guinea v. Rei Reinou and Ors. (1987) P.N.G.L.R. 253


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


In the Estate of Knibbs (1982) 2 All E.R. 829


Whyte v. Pollock (1882) 7 A.C. 405


In the Estate of Beech, Beech v. Public Trustee (1923) P. 46


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


Lemage v. Goodban (1865) L.R. 1 P. & D. 57


In bonis Fenwick (1867) L.R. 1 P. & D. 319


In bonis Petchell (1874) L.R. 3 P. & D. 153


In re Resch's Will Trusts (1969) 1 A.C. 514


In bonis Matthew Leese (1862) 2 Sw. & Tr. 422


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) P.N.G.L.R. 558


In the Land and Goods of Doa Minch (1973) P.N.G.L.R. 558


Re Bimai-Noimbano, Deceased (1967-68) P.N.L.R. 256


Jordan v. Edwards (1979) P.N.G.L.R. 420


Pratt, J.


The present matter has come before me by way of special case stated under Order 38 Rule 1 of the National Court Rules. The facts upon which the matter was argued are as follows:


One JAMES ALLAN SANNGA was born on the 27th November, 1949 and died on the 18th 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 the 4th January, 1976, and the other DUNCAN born on the 9th 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 the 13th October,1976, in handwriting, (2) a draft typed document forwarded by Messrs Francis & Francis to the deceased on the 13th April, 1977, being in the form of a formal will, (3) a letter apparently from the deceased to Messrs Francis & Francis dated 6th May,1977, suggesting certain changes to the previous mentioned document, (4) a reply to that letter from Messrs Francis & Francis dated the 17th May,1977, (5) a further response, apparently in the handwriting of the deceased, forwarded to Messrs Francis & Francis on the 4th June,1977, containing a number of suggestions, and (6) a reply in response to this final letter of the deceased from his solicitors dated the 28th June, 1977, and there the correspondence ended. These documents are exhibited to both affidavits of Duncan Martin Ferrie, the first defendant herein, sworn on the 19th May, 198l, and 4th June, 1981. In the affidavit of 4th 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 19th 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 D.M. 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 the 13th October, 1976, excluding interlineations, to take effect as a will, as at the 13th 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, ss. 6, 13, 16, 24 and 43, should be noted (chapter 291, ss. 2, 10 (2), 11, 19 and 25).


S.6 reads:


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


S.13 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."


S.16(1) 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 ..."


S.24 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 the wife or husband of that person or any person claiming under that person or wife or husband, void."


S.43 reads:


"(1)Notwithstanding anything in this Division or in any other law at any time in force in the Territory or a part of the Territory contained but subject to the next two succeeding subsections, a will, whether made before or after the commencement of this Act, shall not be deemed to be invalid, and a gift, devise, bequest, appointment or thing in or under any such will shall not be deemed to be invalid or to fail, solely by reason of any defect or want of formality, or of any failure to comply with the provisions of this Act or of any such law, if it be proved that the testator intended the will to be his last will and testament and that intention is clear, but shall be given effect to, and shall have effect, according to the intention of the testator so far as that intention is clear and can be given effect to.


(2) Nothing in the last preceding subsection contained affects or shall be deemed to affect the operation of Section 24 of this Act."


In order to follow more easily what I am about to say, I also set out the documents agreed to be in the handwriting of the deceased.


Annexure "A"


"SIKDA PTY. LTD.

P.O. BOX 105,

PORT MORESBY

Ph. 25 1138


MANAGEMENT SERVICES

PTY. LTD.,WAU.

PINE LODGE HOTEL

PTY. LTD.,BULOLO

KAME AND ANGNA

PTY. LTD.,PORT MORESBY


13-10-76


To whom it may concern


I would like Mr. Duncan Ferrie & Mr. Bill Johns to look after my affairs.


My possessions & share in Kame & Angna to be left 50 percent to D. Ferrie & 5% to Edward. My other shares to my son Edward. To my wife I make a cash sum of. I ask that Mr Ferrie look after my son & responsible for him.


D.M. Ferrie (signed)

Witness

J.M. Ferrie (singed)

Witness


James Allan Sannga (singed)"


Annexure "D"


"6/5/77


Could you kindly please change these numbered parts of my Will.


No. 1. OK


No. 2. OK But add second person. I suggest Sharon Johns.


No. 3. I give devise and bequeath equal share of all real personal estate to Duncan Martin Ferric and equal share to be held in trust by Duncan Martin Ferrie for my son Edward.


Allan James Sannga (signed)"


Annexure "F"


"KAIME AND ANGNA PTY. LTD.,

P.O.BOX 105,

PORT MORESBY


MANAGEMENT SERVICES

PTY. LTD., WAU

PINE LODGE HOTEL

PTY. LTD., BULOLO

SIKDA PTY. LTD.,PT. MORESBY


4-6-77


Francis & Francis,

Port Moresby.


Thank you for your letter. The second trustee would be Mr. W.H. Johns, GAYLE STREET, SOUTHPORT, QLD.


Mr. DUNCAN MARTIN FERRIS would be also act as trustee. I like these two men to look after my affairs and to manage the business for my son Edward.


On my businesses I would give Duncan Ferric half of all I have in his name.

The other half to remain in trust for my son Edward.


For my wife, she should have an allowance during her life time, but this amount would come out of Edward's trust and only the people who after the trust think the trust can afford the money.


The amount to be divided by the manager.


Thank you.
James Sannga (signed)"


The first question under the Case Stated is in the following terms:


(1) What, if any, is the presumption in respect of interlineations? What is and on whom lies the burden of rebutting the presumption, if any?


Reference to the document of October 1976 discloses that the words "50 percent to D. Ferrie & 5% to Edward" have been interlineated between the words "to be left.", and "my other shares to my son Edward". Part of the underlying law of this country consists of "the principles and rules of common law and equity in England", which are not inconsistent with enacted law and neither inapplicable nor inappropriate to the circumstances of the country. Those principles dealing with alterations to written documents are, in my view, clearly part of the underlying law of this country in 1982. Unfortunately I do not possess the same certitude in defining what those principles are and more particularly what presumptions exist in respect of such principles. There appears to be some conflict in the leading texts. In Williams on Wills, 4th ed., p.107, we find the following:


"There is a presumption that unattested alterations, interlineations and erasures were made after execution ..."


and the learned author refers in a footnote to the case of Cooper v. Bockett[1], which he says "is generally regarded as establishing this presumption, but it has been stated many times since". He goes on to point out that the presumption is rebuttable. With this proposition, I would certainly agree. In Jarman on Wills, 8th ed., vol.1 at p.174, the following appears:


"Where obliterations and interlineations appear on the face of a will, and there is no evidence to show when they were made, the presumption is that they were made after the execution of the will; but it seems that slight evidence is sufficient to rebut the presumption, unless the alterations are of an important character."


The learned author points out however, that where blanks have been left which have been afterwards filled up but without evidence to show when the filling in occurred, "the presumption is that the blanks were filled in before execution". He then goes on to point out an aspect which perhaps affords a solution to what appears to be on the face of it an apparent conflict in the texts. At p.175 he says:


"And although there may have been no blanks, but the names of the legatees are found interlined, yet if the interlineations only supplies a blank in the sense, and appears to have been written with the same ink and at the same time as the rest of the will, the Court will conclude that it was written before execution."


In the 13th ed. of Theobald on Wills at par. 133, the same principle appears to be enunciated in these terms:


"Alterations and additions made in a will complete without them must be presumed, in the absence of evidence, to have been made after the execution of the will or any subsequent codicil. Alterations and additions made in a will which would be incomplete without them, must be presumed to have been made before execution."


In all these learned texts there is reference to an abundance of authority. Referring back to Williams' reliance on Cooper v. Bockett (supra (1)), it should be noted that such case deals in part with a question of alteration and not interlineations; some of the words being overwritten as a result of which the new writing gave substantial benefits to a Reverend Jermyn Pratt and others being erased by zigzag scratches, thus apparently denying the remaining two claimants any part of the estate. Whilst the Privy Council's decision therefor is certainly authority for the presumption of law that "alterations and erasures were made after the execution of the will", I do not believe that the purported to affirm a similar presumption in respect of interlineations in order to complete the sense of a paragraph or the filling in of blanks. In the case of In bonis Cadge[2], the will contain several unattested interlineations, mostly single words, each one of which was required to complete the sentence. They were apparently written with the same ink and at the same time as the rest of the will. What was written was an important addition which affected three children as beneficiaries, but without the interlineations the sentence would have been unintelligible. Sir J.P. Wilde was of the view that there was "a marked distinction between interlineations and alterations. Interlineations are generally used merely to complete an imperfect sentence, whilst an alteration is a change in the original disposition." In Birch v. Birch[3] the will contained a number of blanks which had been subsequently filled in, some in red ink and some in black together with a number of alterations and interlineations. The court ruled that all such interlineations and blanks written in black ink should be subject to grant of probate but otherwise with those written in red. It appears however from the judgment of Sir Herbert Fust that the interlineations were really part of the blank spaces as the spaces so left were insufficient to write in the words which the testator wished to be placed in the will. In the case of In bonis Swindin[4] Dr. Lushington was of the view that it was not part of the duty of the, dart "to raise obstacles and make the Wills Act more difficult of compliance than it is already". As the attesting witnesses did not know whether the interlineations had been placed in the document before or after it was executed, the Court ruled that the bequest stood. Dr. Lushington puts the matter perhaps even more strongly in the case of Greville_v. Tylee,[5] and in so doing clearly distinguishes Cooper v. Bockett (supra (1)). At p.327 of the report the Rt. Hon. Doctor says:


"It is not a mere difference of ink or handwriting, which would constitute any of the acts done according to the true meaning of the Statute. The mere circumstance of the amount or name of the legatee, inserted in a different handwriting and in different ink, would not alone constitute an obliteration, interlineation, or other alteration. Blanks may be supplied, and in a different ink, because the Will may very probably be brought with blanks to the Testator, and then filled up; no presumption could arise in such a case against the Will having been executed as it appears. But the case is different when there is an erasure apparent on the face of the Will, and when that erasure has been super induced by other writing. In such a case there is an obliteration and something more, which constitutes an alteration, and then the question arises, whether this was done before the execution of the Will or not? We apprehend it to be now settled, that whoever alleges such alteration to have been done before the execution of the Will, is bound to take upon himself the onus probandi, Cooper v. Bockett (4 Moore's P.C. Cases 419).followed and approved by Lord Cranworth in Simmons_v. Rudall (1 Sim., N.S. 137)."


It may be contended that In bonis White[6], shows Sir Cresswell Cresswell was of the view that the presumption applied to blank spaces only and not interlineations, and that a presumption of regularity exists only in the former case. However although the learned judge referred to three authorities, no mention is made of either of Dr. Lushington's judgments. The later case of Cadge (supra (2)) makes no reference to In bonis White (supra (6)) with great respect to Sir C Cresswell, I prefer to adopt the principles stated by Dr. Lushington and Sir J.P. Wilde.


In the document presently before me, the sentence preceding the interlineations makes no sense without it. In my view of the law I must presume that such interlineation was made before execution. The ink is of the same colour but it is impossible to say whether the writing is the same or not because the interlineation appears in printed words whereas the rest of the document is in script. My ruling is for the purpose of answering the stated case and does not prevent evidence being called on the point if the parties so desire.


The effect of this ruling I shall deal with more fully a little later on, but at the moment I indicate that the inter line Lion of "50 percent to D. Ferrie" may be completely disregarded as said D. Ferrie was a witness to the document. Although informalities are overlooked by virtue of s.43 of the Act, this is subject to the overall prohibition set out in s.24 which prohibits an attesting witness from taking a benefit under the will.


I also adopt Dr. Lushington's ruling in Greville v. Tylee (supra) that the onus of rebutting the presumption of regularity lies upon the party who disputes the validity of the inter line Lion in respect of the beneficiary Edward.


It should be noted in the case of Public Curator of Papua New Guinea v. Rei Reinou.and Ors.[7] it was accepted by the parties that the alterations were made in the hand of the testator and that by virtue of s.43 those alterations then constituted the new will. The point as to whether alterations to a will come strictly within the terms of a defect or want of formality, was not required to be argued. Although what had amounted to "defects" within the meaning of s.43 did form a substantial: part of the submissions in Public Curator of Papua New Guinea v. Public Trustee of New Zealand[8], once again the question of presumption in respect of alterations and interlineations was not one required to be decided by the Court.


Neither the substantive law nor the presumptions dealing with interlineations, alterations and blanks are concerned with areas of mere formality covered by s.43. They are something more than a mere absence of proper form. All the old authorities were decided on the basis of a United Kingdom section very similar in terms to our own s.30 of the Wills Probate and Administration Act (Chapter 291, s.22).


The second question under the Case Stated is as follows;


"Is there a rule of the underlying law to the effect that where there is a beneficial disposition to an attesting witness, there is a presumption that the entire will is invalid and ineffective unless affirmative proof is adduced to show that the testator had knowledge of the beneficial disposition and approved of it?"


Once again the question is directed to a matter of presumption but in my view the concluding words of s.24(1) of the Wills Probate and Administration Act do not leave any room for a presumption that the entire will is invalid, for the gift is void only insofar as concerns "the person so attesting". At p.110 of Jarman (supra) the learned author points out that because of the provisions of the Statute of Frauds, a will of` a freehold estate attested by a person having a beneficial interest therein was void in its entirety but that under s.14 of the Wills Act, such an entire voidance was no longer applicable. I appreciate that s.24 of our Act is not in the same terms as the English Wills Act and that we have our own counterpart of the Statute of Frauds, (see now Chapter 330). However the inference seems so strong to me from the wording of our own Act that it is only the particular gift which is void and not the entire will, that to find to the contrary would not be giving the terms of the legislation their "fair and liberal meaning".


In the light of the admissions by the parties for the purpose of this Case Stated, I have no difficulty in coming to the conclusion that the document of October 1976 was a valid will which then expressed the testamentary intention of the party. Following on my previous ruling, such will is to incorporate a gift to Edward but not to Ferrie. However as will appear in a moment, one cannot look at this document alone in order to establish the testamentary intent of the deceased at the time of his death.


I now pass to the third question:


"If it is proved that the annexure to the affidavit of testamentary scripts, dated the 13th day of October, 1976, (including the interlineations) was written out and executed by the deceased and thereafter witnessed by Duncan Martin Ferrie, the first defendant, and his wife Joan Mary Ferrie in the deceased's presence and in the presence of each other, did the deceased leave any valid will?"


In order to execute any valid will a person must of course have the capacity to do so. Counsel for the applicants has dealt with the question of capacity during his submissions under this heading, but because of the particular wording used in the relevant legislation, I prefer to leave the matter of capacity to be examined in the answer to question 8(b).


Whilst I agree in part with Mr. Haynes that the reference to a number of soldier and sailor wills by Mr. Molloy does not afford authority directly in point, I do not agree that they afford me little, if any, assistance. Indeed they contain a number of statements of the law which I find most apt for covering problems which arise under s.43 of our Act. I do not propose to review all the cases to which my attention has been drawn but rather to single out one authority which sets out the law with considerable clarity, namely the judgment of Mr. Justice Wrangham in In the Estate of Knibbs[9]. His Lordship refers to two decisions which I adopt as the law in Papua New Guinea, the first being part of a speech by Lord Selborne L.C. in the House of Lords in Whyte v Po11ok cited at p.831 of Knibbs.


"In the first place I lay it down that it is, in my judgment, a proposition universally true that nothing can receive probate which was not intended to be a testamentary act by the testator."


As Wrangham, J. goes on to point out:


"A testamentary act does not have to be a document or act of any sort attended by any particular formalities. Indeed, an act may be testamentary in this sense, even though the speaker did not know that he was making a will, or that he was capable of making a will at the time when be uttered the words in issue."


He then cites Salter J. in In the Estate of Beech, Beech v. Public Trustee at p.832


"I think that, in order to constitute a will, the words used by a testator must be intended by him, at or after the time he uses them, to be preserved or remembered so as to form the guide to those who survive in carrying out his wishes."


Mr Justice then continues:


"In other words, in order to be a testamentary act there must be a statement of the deceased's wishes for the disposition of his property which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request explicit or implicit to see that his wishes are acted on."


I would take this also to incorporate a situation where a person is conferring with his solicitor for the purpose of drafting a will and that the principle would distinguish where there was a mere discussion as to what might or might not be desirable to incorporate in the will as opposed to an explicit or implicit direction as to what wishes are to be acted upon. The relevance of this observation will appear in a moment when I deal with the other documents which form part of the correspondence in connection with this matter. What I see emerging from these sailor and soldier cases is a clear principle applicable in situations where the Court finds that s.43 of our Act has application. To use the words of Prentice D.C.J. (as he then was) at p.430 of Public Curator of Papua New Guinea v. Public Trustee of New Zealand (supra (8)):


"My view is that the legislature has made evident an intent that defects, informalities and statutory non-compliance comprehensively, shall not invalidate a will proved to have been intended clearly to be a last will and testament."


In view of the parties' agreement and my earlier ruling, the answer to the question is obviously yes, in part. However the complete answer to this question must depend on the answer given to question 4. What I have already said is also pertinent when I come to examine several other documents when dealing with the matter raised under that heading.


4. If the answer to 3 is in the affirmative:


(a) which document or documents comprise the deceased's will?


In addition to Annexure "A" to both affidavits, there appear the following documents (as set out in the affidavit of D.M. Ferrie sworn 19th May, 1981)


Annexure "B" - A letter dated the 13th April, 1977, from a firm of solicitors to Mr Sannga enclosing a draft will in typed form for consideration and further instruction.


Annexure "C" – The draft will above referred to consisting of three pages couched in the usual formal terms to be expected from a lawyer's office revoking all former wills, appointing an executor and trustee, directing payment of all debts and so forth, and setting up a trust in respect of the balance of the estate. This document does not carry any handwriting or signature


Annexure "D" – A reply from the deceased dated 6/5/77 in his own handwriting to the solicitor (set out at the beginning of this judgment).


Annexure "E" - A letter of the 17th May 1977,from the solicitors to the deceased requesting further information and particularly as to whether there is provision to be made for the wife of the deceased during her life.


(I can well understand that there were a number of matters which the solicitors wished to have clarified.)


Annexure "F" – A further reply by the deceased dated 4-6-77, to the letter Annexure "E" (set out at the beginning of this judgment).


Annexure "G" - A further letter from the solicitors to the deceased dated the 28th June, 1977, again raising a number of difficulties and requesting clarification, in response to the deceased's memorandum, Annexure "F".


At that point the correspondence apparently ceased.


Let me say at the outset that I reject the typed document headed "Last Will and Testament", annexure "C", for several reasons. First, it is a document which is drafted in such terms that difficulty would be occasioned to an ordinary layman in understanding exactly what was being covered. The fact that the deceased replied in a form which mentioned only several matters covered in the will bolsters my view that he may well not have had full appreciation of what the document contained. Consequently the most that could be said in respect of this document is that it formed a part of discussions between solicitor and client as to what might eventually form the basis for instructions upon which a will could then be drawn and finally executed. Secondly, I agree with the decision of the Honourable Mitchell in a case to which Mr Molloy has drawn my attention: Baumanis v. Praulin[10]. Although the wording in s.12 (2) of the South Australian Wills Act is somewhat different from our own s.43, the intention is the same in both sections and I agree that it not the intention of the section to validate a document "which has not been executed at all ... The phrase used seems to presuppose some form of execution," although the execution need not be such as prescribed by the Act itself. The learned judge went on to find there was a complete absence of any evidence that the deceased intended the document to constitute a will.


The evidence was quite to the contrary, for he intended to execute another document in like terms. Nor do I consider in the present circumstances the deceased's letter to the solicitor agreeing that any former will should be revoked was an absolute revocation. At the most, in my view, it was an indication to the solicitor that if he decided to settle on some other form of will he was ageeable to revoking any previous will that may have been made.


It is established law in England that a will may consist of more than one document and again I hold these principles applicable to the circumstances and conditions of the country. It is necessary first to decide whether the documents dated the 6th May, 1977, and the 4th June, 1977, amount to testamentary intention within the meaning of s.43 of the Act. The same thrust goes throughout all three documents, namely half the estate to Ferrie and, putting it very loosely, half the estate to the son Edward. There is no deviation from this approach and no evidence to indicate that as at the day of Mr Sannga's death he had diverged from that view. In other words, in order to ascertain what was the testamentary intent, if any, which the deceased held on the day of his death, it is necessary to collate the three documents, for each later document explains and expands on what was stated in an earlier one.


I take the principle adopted by me from the 4th ed. of Williams on Wills at p.118:


"Where there are several testamentary instruments which are not wholly inconsistent, they are read together to constitute the last will of the testator for any number of documents whatever their date or form can be so admitted to probate. ... The presumption against implied revocation is greater where the testator has used words showing an intention only to alter the dispositions in certain specific respects."


Reference may also be made to Theobald (supra) at par. 145 and par. 191. It seems obvious that where the document enlarges or explains what has been written in an earlier document, then there exists an even greater presumption against implied revocation. In addition however, there is more than just mere explanation in the later documents. Amongst the authorities cited in the various texts I have obtained assistance particularly from Lemage v. Goodman[11] where the headnote reads:


"Where there are two testamentary papers, each professing in form to be the last will of the deceased," (my emphasis) "the Court in determining whether one or both are entitled to probate must be guided by the consideration, and not whether the testator intended them both together to form his will, but what dispositions of his property he designed to revoke or to retain."


Sir J.P. tilde at p.62 of the report stresses that -


"...the intention of the testator in the matter is the sole guide and control. But the 'intention' to be sought and discovered, relates to the disposition of the testator's property, and not to the form of his will. What dispositions did he intend? - not which or what number, of papers did he desire or expect to be admitted to probate, - is the true question."


His Lordship was obviously consistent with this ruling in a later case : In bonis Fenwick. The case of In-bonis Petchell is of some interest because in that matter the first will gave the residue of the property to the deceased's daughter absolutely whereas in the second will, which contained no revocatory clause, she did not dispose of the residue of her estate at all. In his judgment Sir James Hannen specifically refers to Lemage v. Goodban (supra) and counsel had drawn his Lordship's attention, inter alia, to In bonis Fenwick (supra ). The most recent of cases on this point is a decision of the Privy Council in In re Resch's Will Trusts where their Lordships lay down a statement of the law which I would respectfully adopt. At p.547, Lord Wilberforce says:


"As a general principle, their Lordships need do no more than restate their adherence to the 'very clear and strong rule' that it is encumbent upon those who contend that a gift in one testamentary instrument is not to take effect by reason of some subsequent instrument to show that the intention to revoke is as clear and free from doubt as the original intention to give."


Because of the "appointment" of a different executor in the second testamentary document (Annexure "D"), it might be contended that an irreconcilable inconsistency exists between that document and the other two. I would reject such submission on several grounds. First I am not convinced that the appointment of a different executor in the second document exhibited a testamentary intent on the part of the deceased. Secondly the documents can still be read collectively by excising the appointment of the particular executor mentioned in document No. 2 and thus arrive at a consistent statement of affairs. Thirdly the authorities show that the appointment of two different executors in differing instruments does not necessarily amount to an inconsistency and if necessary such an executor appointed in a second document will be granted probate alongside and together with a different executor appointed in the first document.


In bonis Matthew Leese the testator executed two testamentary papers. There was an appointment of three persons as executors in the first document. In the following year there was another testamentary paper made disposing in a different manner his personal property but not effecting realty, and in this second document he appointed one of the first three executors in conjunction with a different one altogether. It was held (headnote), that the second appointment of executors was no revo-cation of the first and that, "as the bare nomination of executor entitles a paper to probate, leave should be reserved, on the second set of executors taking probate of the two papers as together containing the last will and testament of the deceased, to the first set of executors to come in and prove." The case is not entirely satisfactory but it does underline the fact that one can dispose of property in different ways by different docu-ments and yet still have the two documents read together.


Assistance may also be obtained from Geaves v. Price. Again there were two testamentary papers with different executors. In that one, interestingly enough, there was a devise of all real and personal estate to one P. in the first document and in the second document two houses, that is part of the real estate, were devised to G. In the first paper P. was the executor; in the second paper G. was sole executor. The Court held that the two executors were jointly entitled to probate of both papers. The case perhaps particularly underlines the Court's desire to avoid cancelling any testamentary document if it is possible to do so constructively. The judge in this case was again Sir C. Cresswell who was also the same judge in Matthew Leese' case (supra ). The case of In bonis Graham is reported just immediately before Geeves v. Price (supra). Again there are two testamentary papers with different executors. In the first the testatrix bequeathed specified property between her four sons and made R. the sole executor. By another later paper she left all the property to be divided between her three sons and appointed one of those sons sole executor.
The Court again held that both papers should be included in the probate.


It is then to the three documents which I must look in order to determine whether a testamentary intention existed and if so what it was, (excluding of course in the second document any reference to a revocation and the appointment of a second executor and trustee Sharon Jones). I regard all three documents as inter related and comprising the testamentary intent. Whilst it is true that in Annexure "D" the deceased may nave been contemplating the matters mentioned by the solicitor in the formal draft will, the repetition of his desires in three separate documents executed over a period of eight months, the long period of inaction after the 4th June 1977 despite the receipt of Annexure "G" at the end of June, leads me to the conclusion that the deceased was at least happy with the statement of his testamentary intentions on the day of his death, if not with the form. The absence of the signature of Ferrie to Annexures "D" and "F" however does not have the consequence that he no longer falls within the prohibition set out in s.24 of the Act. The original "tainting" brought about in the first document by the bequest to the attesting witness still pervades throughout the two subsequent documents with the gift to him two parts effect that following the death of the deceased the still remains void. This then leads us to the next of question 4 :


"(b) What part or parts of the deceased"s estate is or are disposed of by his will?


(c) How and to whom is the deceased estate or part thereof disposed of by the: will?"


Annexure "A" gives "my possessions and share in Kame and Angna to be left 50 percent to D. Ferrie and 5% to Edward. To my wife -I make a cash sum of. In Annexure "D" the testator did "give, devise and bequeath equal share of all real personal estate to Duncan Martin Ferrie for my son Edward." In Annexure "F" hewrites


"On my businesses I would give Duncan Ferrie half of all I have in his name. The other half to remain in trust for my son Edward. For my wife, she should have an allowance during her life but this amount would come out of Edward's trust and only the people who after the trust think the trust can afford the money. The amount to be divided by the manager."


Pausing here for a moment, it is clear to my mind that the words "who after the trust" should read and were meant to read "who look after the trust. Again the word "manager'", in the absence of any evidence to the contrary, indicates the manager of the trust. Let me say at the outset that I have a strong suspicion it was the intention to divide the possessions and the share in Kame and Angna fifty percent to Ferrie and fifty percent to Edward not 5% as stated, for the simple reason that if one does not construe the "will" in that way there is no apparent disposition of the remaining forty-five percent o£ the possessions or the shares in Kame. I am further fortified in this belief because documents "D" and "F" make an equal division between Duncan Ferrie and son Edward, albeit the third document does place an additional call on the trust put aside for Edward insofar as it must provide also for certain allowances to be paid to the wife. My, ruling therefore is that if there is an inconsistency between document "A" on the one hand and. documents "D" and "F" on the other, the inconsistency is such as to relate to an alteration of a legacy and consequently does not prevent the testamentary, dispositions being read together (adopting the principle in Follett v. Pettman and In re Resch's Will Trusts (supra ) at pp.548 to 549).I am not unmindful of the fact that Edward may have been entitled to more under the original document for although 'he gets only 5% of Kame and Angna, he receives all "my other shares".


There are two principles which one must keep in mind in order to strike a balance. The first is expressed by Theobald (supra) at par 1470


"Where a subsequent will disposes or shows an intention of disposing of all the testator's property, it would be held to have revoke a prior will in toto, whether the dispositions contained in the subsequent will are different from the earlier dispositions or not.".


This however must be contrasted not only with what the learned author has himself implied in par. 145 but. with Williams' (supra) assertion at p.118:


"Where there are several testamentary instruments which are not wholly inconsistent, they are read together to constitute the last will of the testator ... The prior disposition is not to be disturbed further than is absolutely necessary to give effect to the later one."


A classic example of the latter principle is to be found in the facts constituting the case already referred to of Lemage v. Goodban (supra (13)). There are other examples appearing in the authorities quoted by both Theobald (supra) and Williams (supra). Lemage is partly distinguishable on the basis that the original residue was not dealt with at all in the subsequent document and consequently it could be said that it never lost its existence. Perhaps even more to the point is the Follett v. Pettman (supra (20)) where alterations in the substance of the various devises.


I would summarise the end result of the three documents as follows:


Document 1 (Annexure "A") gives:


(a ) a 50% share to Ferrie and a 5% share to the son Edward of all the deceased's possessions and the chzres in Kame and Angna;


(b) all other shares to the son Edward;


(c) a gift of an indeterminate amount of cash to the wife.


Document 2 (Annexure "D") gives.,


All real and personal assets to be divided 50% to Ferrie and 50% on trust to the son Edward until he shall become of age with the interest thereon to be applied for Edward's maintenance, education, advancement and benefit in life.


Document 3 (Annexure "F") gives:


(a) "50% of all business and all I have to Ferrie" - I interpret this to be 50% of all real and personal estate.


(b) The remaining 50% of the above to the son Edward to be held in trust with the interest thereon to be applied to the maintenance, education, advancement and welfare of the said Edward.


(c) In addition to the above where sufficient finances exist to adequately cater for the advancement et al of Edward, the remainder of the interest to be paid to the wife. This of course may leave the wife with next to nothing. However in the final upshot neither she nor the other unspecified children of the marriage are left without support, but I shall deal with this a little later.


Collating the three documents then, it can be seen that there is an alteration of a devise from the first to the second document. As I have said earlier, I suspect strongly that Edward was meant to obtain 50% and not 5%. In addition to the reasons I have already given, the testator talks about his "other shares, which would imply to my thinking that he was of the belief that he had already dealt with the previous shares, namely the shares in Kame and Angna, as well as his possessions. I might say also that the way in which the testator has used the word "possessions" I would take to mean all of his possessions and not merely personal estate. It may also be seen that there is provision for a gift to the wife, though no particular sum is mentioned, and this is followed through in the third document although it has been overlooked in the second. Basically what I think the testator is trying to achieve in the first document, he has brought out more clearly in the second and the third.


I hold that the composite final testamentary disposition establishes a devise and bequest of fifty percent of the estate to the son Edward to be held on trust until Edward attains the age of twenty-one years and then to Edward absolutely with interest thereon to be paid for the welfare, benefit, advance-ment and education of Edward and any balance to be paid to the wife. I do not think the deceased intended any of the capital to be used for the above. The remaining one half of the estate being devised to Ferric, whose gift is void, becomes intestate.


I now come to 4(d):


"Are the defendants, or either of them, validly appointed executors and/or trustees of the deceased's will?"


Once again, reading the three documents together, it is clear that there is no specific appointment of an executor or trustee as such. However the words used by the testator make it clear that he was intending not only that a person or persons should be made an executor of the whole estate to oversee its general management, but that they were also intended to act as trustees in respect of the sums due to Edward pending his majority. Looking at the actual words, I particularly note "to look after my affairs" in Annexure "A", a reference specifically in Annexure "D" to the appointment of Ferrie as executor and trustee with the addition of a second person, and in Annexure "F", which refers to a letter by the solicitor, the name of Mr W.H. Johns is once again mentioned as an alternative trustee to Mr Ferrie. Consequently from the solicitor's correspondence and the combine testamentary script, I have no doubt as to the deceased's intention.


In Vol.17 of Halsbury, 4th ed., par. 710, we find the following:


"Where a testator fails to nominate a person in express terms to be his executor, but upon a reasonable construction of his will it appears that a particular person has been appointed to perform the essential duties of an executor, such an appointment is sufficient to constitute that person an executor. The person so appointed is called an executor according to the tenor."


A little further down the paragraph, the learned author states:


"If a testator employs the word 'trustee' in a loose sense, the person appointed trustee is entitled to obtain probate of the will; but where it cannot be gathered from the will that the person named as trustee is required to pay the testator's debts and generally to administer the estate, he is not entitled to probate."


I find that D.M. Ferrie and W.H. Johns are executors and trustees of the estate. I would point out however that under the provisions of s.13 of the Trustees and Executors Act, sub-s. (1) (b), the Court may appoint a new trustee where the original trustee "remains out of Papua New Guinea for more than twelve months". The various texts also stress the undesirability of appointing an executor or trustee resident outside the jurisdiction. I can well see the reasons which lie behind. this advice, and I agree that overseas appointments are undesirable.


Question 4(e):


"Is the deceased's will effective under the Wills, Probate and Administration Act 1966, or how otherwise?"


The answer to this is:


Yes, under the provisions of s.43 of the Act but subject to the prohibitions laid down in ss. 24, 13 and 6


Question 5:


"If a person has been validly appointed as executor under a non-customary will, under what circumstances can he be passed over in favour of another personal representative?"


Dealing with counsel's submission on this point, I would agree that if a person does not have power to make; a will under the Act then he certainly does not have power to appoint an executor or trustee under the Act. To some extent however the answer to this problem really emerges in setting forth the answers to various parts of question 8 hereunder and I shall defer further reply until I deal with that question. I simply state here that the person appointed under a non-customary will prevails over any other where there is no contravention of ss.6 and 13.


Question 6:


"Is the first defendant validly appointed guardian o£ the deceased's son, Edward Sannga born on the 4th January 1976?"


I do not think that the appointment of a guardian requires any words of art or any specific term. Admittedly it makes the matter much easier if the word 'guardian' is used, but when one looks at the actual words penned by the testator I do not think there can be any doubt that Duncan Ferrie was intended to be what amounted to a guardian of the child Edward until his majority was reached. For example in Annexure "A" the testator says:


"I ask that Mr Ferrie look after my son & responsible for him."


In Annexure "D" there is only an appointment of Ferrie as a trustee for Edward. That of course does not indicate that he appointed a guardian but it is at least consistent with Annexure "A" and also with what is said in Annexure "F", namely:


"I like these two men to look after my affairs and to manage the business for my son Edward."


Once again I would not take that terminology by itself as sufficient to appoint either man as guardian, but it is not inconsistent with the words used in the first document which I take to amount to a direct appointment. In relation to guardianship however, I agree that s.8 of the Infants Act (Chapter 278, s.5) makes provision for joint guardianship by the surviving mother and a person appointed guardian by will.


However, in determining this matter a Court, must also make allowance for s.9 o£ the Native Customs (Recognition) Act (chapter 19, s.6) which provides:


"Notwithstanding anything in any other law in force in Papua New Guinea or a part: of Papua New Guinea contained, native custom shall be taken into account in deciding questions relating to guardianship and, custody of infants and adoption."


Thus whatever other factors must be placed in the: balance, due regard must be paid to the custom of the area from which the child comes. The problems raised were referred to by Williams J. in Anis v. Anis , although His Honour directed himself to custom by virtue of the Constitution rather than the Native Customs (Recognition) Act. At p.9 he says:


"Section 7 of the Infants Act, under which this proceeding is brought, directs the Court to have regard to the welfare of the infant, the conduct of the parents and the wishes of each parent. As I stated in McLeary v. McLeary (unreported Pre--Ind. Supreme Court judgment No. 737 dated 3rd May 1973), the section sets out the three matters to be taken into account without expressly providing the degree of emphasis to be placed on any one of. them. However, I reiterate what I said in McLearv v. McLeary that it seems to me that the welfare of the infant must be a very important consideration to be taken into account along with the other matters mentioned in the section."


With respect I have adopted His Honour's views on previous occasions and I continue to do so.


The Infants Act excluded any person to whom the Native Children's Act and the Part Native Children's Act applied. Mr Haynes submits that when those two acts were repealed by the Child Welfare Act 1961, then by virtue of s.47 of the then Acts Interpretation Act 1949 (as amended), the Child Welfare Act was meant to operate in respect of national children. This would certainly be a departure from the practice of this, Court and is one which I consider unnecessary. Both the Infants Act and the Child Welfare Act have worked together harmoniously since 1961 and I see no reason for interfering with such a longstanding view of the law.


As s.6 of the Infants Act gives joint custody to mother and father, and joint custody to the mother and a guardian appointed by a deceased father under s.8(1), then prima facie the guardians of the child Edward in the present matter are the widow Haima Sannga and Mr Duncan Martin Ferrie. I say prima facie because it is obviously desirable to have some continuity immediately following a death, but it is quite possible when all interested parties manage to sort themselves out that application may eventually be made to a court for some rearrangement. Whilst it is quite feasible that such parties may come to an amicable arrange-ment which will be to the benefit and welfare of all concerned and. takes into account the operation of custom, when a dispute arises it can only be resolved by some independent authority. Such an authority of course would encompass a court, which would be guided by the welfare of the child, the provisions of the Infants Act generally as well as the Child Welfare Act and the directions given in the Native Customs (Recognition) Act to take custom into account when determining matters of guardianship. I am of course unable to do this in the present circumstances and thus I can make no more than an interim finding for the purpose of answering the question in the Case Stated.. Perhaps putting this another way, my view is that by operation of law, namely s.8 of the Infants Act and the underlying law concerning appointment of guardians by will and especially s.8(1)(b) of the above mentioned Act, guardianship vests immediately upon death; but that is not a vesting of a permanent nature as circumstances may require that some other arrangement be made under custom and the only way in which certainty can be achieved is to make an application to Court and there produce all relevant evidence as to custom as well as other matters which will assist the Court in determining the issue of guardianship. I do not think this is overriding the provisions of s.9 of the Native Customs (Recognition) Act but merely provides an anchoring point until custom can be ascertained and its effect determined.


Question 7:


"Is there an intestacy as to any part of the deceased's estate?"'


The answer to this question has already been given but to repeat it here:


Yes, to half the entire estate.


Question 8:


"If the answer to 7 is in the affirmative:


(a) in respect of which part of the estate does the intestacy extend?"


The answer to this is already apparent from what I have previously said. Williams (supra) at p.328 of his 4th edition defines a partial intestacy as follows:


"Intestacy is either total or partial. Total intestacy occurs when a man makes no effective testamentary disposition of any property of which he is competent to dispose by will. Partial intestacy occurs where a man makes testamentary dispositions which are ineffectual as to part or as to some interest in all or part of the property of which he is competent to dispose by will. If a testator does not by his will make an effective disposition of the whole of his disposable property, such property as he does not dispose of must be distributed at the time when the partial intestacy occurs as if no will had been made, but it devolves on the executor or administrator with will annexed and no further grant is necessary."


There is a partial intestacy in the estate to the extent of one half, such estate to cover real and personal property but not of course any real estate held under custom. Such land could not be the subject of a will under s.6 of the Act, the deceased being an "automatic citizen" and undeniably a person who comes within the terms of s.98 of the Interpretation Act, Chapter 2. The Revised Laws in a footnote to s.98 points out that the section has been "exhausted since the commencement of the Revised Laws". If one goes to the new Revised Act, Chapter 291, s. 2 thereof, which replaces the old s.6, reads:


"Nothing in this Act applies to or in relation to customary land."


Neither under the Act nor the wording of the Revised Act is the racial origin of the testator relevant. When making a will it is the nature of the land which is paramount and not the racial origin of the testator. I do not think this interpretation necessarily conflicts with Robson A.J. at the top of p.568 in the case of Doa Minch (22).


Question 8(b):


"Is the estate to which the intestacy extends to be distributed according to the deceased's customary law or according to the Wills, Probate and Administration Act 1966, or how otherwise?"


The first area which I intend to deal with here concerns the submissions made by learned counsel for the applicants that there is no capacity in the deceased to make a statutory will. To appreciate the argument it is necessary to bear in mind Regulation 144 of what used to be termed the Native Regulations (Papua) (see now chapter 316):


"In the absence of a will the property of a deceased native shall deceased to those persons who in accordance with native custom are entitled to it."


Mr Haynes' first submission is that where the Regulation refers to a "will" it is implying the absence of a customary will, an aural will, and not the absence of a written will. One would have no hesitation in agreeing that such a customary will must be in oral form and not written form. It is submitted that the law concerning wills by automatic citizens is in Part IV of the Regulations and there is nothing in the Wills Probate and Administration Act which affects those Regulations. Regulations 142, 143 and 144 were of course made originally under s.5 of the Native Regulations Act 1908 (as amended) which there states that:


"It shall be lawful for the Lieutenant Governor in Council to make regulations affecting the affairs of natives with regard to:


(1)...,


(2) the succession of property in case of intestacy;


(3) the testamentary disposition of property;"


However there are no Regulations concerning the making of wills other than a restriction on disposition of customary land. What Regulations do exist concern themselves with intestate estates where, as 144 says, no will exists. The Regulations of course do not deal with where the property should go, for that is left again under 144 to custom. To make this quite clear, Regulation 143 states the general law dealing with intestacy shall not apply "to the intestate estates of deceased natives". It is however necessary to read these two Regulations as they actually occur, that is 143 first - the general laws do not apply on intestacy, and 1.44 - in the absence of a will the property shall descend by custom. As I say, the remaining Regulations really deal with the mechanics of how this shall be supervised and more particularly how account will be rendered for what has been done. In passing I might say that Regulation 142 was also enacted in the Wills Probate and Administration Act exempting thereout customary land. Regulation 142 dealt with customary land held by an automatic citizen. It is perhaps doubtful whether the legislative draftsmen envisaged customary land being held other than by an automatic citizen but to make all things sure, Regulation 143 was repealed by Act No. 52 of 1970 and a new section 6A to the Wills Probate and Administration Act 1966 was introduced. I agree with Mr Haynes that the obvious reason why this Regulation was repealed was by virtue of s.6 of the Wills Probate and Administration Act 1966 exempting customary land. I can see no reason however for placing counsel's restricted interpretation on the word "will" either in Regulation 144 or in Regulation 142. Indeed I would think a more reasonable inference was that where Regulation 142 refers to a will, it is indeed referring to a will under the ordinary statute, for I think it unlikely that the Regulation would be directing where a citizen of the country had by will and a power to make a will in relation to distribution of real estate. What the drafter of the Regulations was attempting to do, was to prevent at that stage a formal will being utilized in a. way which would prevent custom applying. Indeed the same intention I think is clear in the existing legislation today where disposition of customary land is contemplated and thus to be prohibited.


As Mr Haynes concedes, there was nothing contained in the legislation applicable at the time the Native Regulations came into force in 1908 which prevented or inhibited a Papuan person from making a will under the Act. Particular note: should be made of s.36 of the Succession Act 1867 (Queensland adopted). The Succession Act of 1867 was to be repealed in part by the Wills Act of 1956 but this latter Act never came into operation, leaving the 1867 Act in existence until it was finally repealed in 1967 by the present Wills Probate and Administration Act. There was certainly some confusion when this new Act was brought into operation in May of 1970. But I am unable to cull from this confusion, as a result of the contemporaneous commencement of Amendment 52 of 1970, the support which Mr Haynes; requires for his submissions both on capacity or lack of capacity for an automatic citizen to make a will and application of the Rules of Intestacy under the Wills Probate and Administration Act as opposed to customary rules where there is a partial intestacy under a will. I might add here that to make the matter even more confused, there are two Acts which introduce a new s.6A to the main Act, namely 52 of 1970 (which is the only amendment relevant to the matters before me), and a further amendment in 1975 by Act No. 42.


It is further contended by learned counsel that certain internal restrictions exist within the Act itself which indicate it was the intention to prohibit automatic citizens from making wills under the terms of the Act. It is said, for example, that s.16 (1) of the Wills Probate and Administration Act, should read not "a person may devise bequeath or dispose etc" but rather "a person who has capacity according to his personal law may etc." However I cannot accept such a submission as in my view it would mean an overriding of the statute law by the law of custom and that is certainly not permitted by the Native Customs (Recognition) Act with the possible exception of s.9. Many, if not all, of the African States have had to deal with the conflict of statutory and personal law for many years. Indeed a reference to Professor Allott's "New Essays in African Law" reveals quickly that both Ghana and Tanzania have introduced special legislation to assist the courts in deciding the choice of law question. He observes at p.135 that the notion of 'personal law' is introduced for the first time in Ghana by the Act of 1960. He also points out that the term 'personal law' has a different meaning from that current in India that recognised by international law. Indeed reference to Cheshire and North's 10th edition of "Private International Law" will quickly disclose that the term in use though perhaps the law of status is another newer name for what was undoubtedly the original area of personal law. Nevertheless it appears to be recognised that there is a personal choice of law to govern the situation. At p.180 of his "Customary Laws of Succession in East Nigeria", Dr. Okoro points out that there are "definite ways by which a Nigerian may remove his property from the operation of customary law of succession. One is by making a will under the Wills Act 1937, which applies to Nigeria. "In his book on a similar area of lacer in Ghana, Mr Justice Ollennu at p.27 points to three systems regulating testate succession or disposition, namely (1) customary law, (2) English law under the Wills Act 1837 and (3) Islamic law. A similar distinction, and capacity in the citizen of the country, is set out in the "Restatement of African Law", Vol. 2, on Kenya in the introduction to Chapter 1. Mr Harvey in his book "The Law and Practice of Nigerian Wills, Probate and Succession" at p.14 finds no difficulty at all in asserting what law must operate where a will is brought into existence. He says at p.14.


"As far as the question of what law, general or customary, should govern the formal validity of a will in respect of which a grant of probate is being applied for in a Nigerian registry, the answer is very simple. In all cases the court must apply the general law, whether or not the testator or the litigants are themselves subject to customary law."


The upshot of all this is simply to the point that where a statute gives a power and where particularly there is a provision in our local legislation which makes customary law subject to the statutory law, then that power cannot be taken away by the custom. Hence if in full exercise of his intellect and desire a citizen wishes to make a will and. thereby override the provisions of his customary law, then I can see no reason why he may not do so, and the statute itself affords him the capacity even if his customary law forbids it. (This general principle of course must be read down subject to the various specific exceptions which exist in the legislation such as the prohibition on disposing of customary land by statutory will.)


Mr Haynes has stressed the provisions of the Eight Point Plan and the National Goals and Directive Principles set out in the Preamble to the Constitution. He further presses upon me that in interpreting the laws I must always retain in mind the requirement under the Constitution that "each law made by the Parliament shall receive such fair and liberal construction and interpretation as will best insure the attainment of the object of the law according to its true intent, meaning and spirit ..." (s.109(4)). He further specifically points to Goals 2 and 3 in the Preamble to the Constitution which were dealt with very shortly by Prentice D. C. J. (as he then was) at p.431 of


Public Curator of Papua New Guinea v. Public Trustee of New Zealand (supra (8)):


"The desire to make proper testamentary disposition of his property comes within the legitimate needs and aspirations of citizens. Equalization of access to the legal processes and services necessary to achieve these needs and aspirations, including (I conceive) the drafting and making of effective wills of which probate can be granted by the Court is a declared aim."


I would respectfully adopt these words of His Honour as applicable to the present case before me. Of course I am not dealing with the form of a will at this stage but the capacity to make such will. And in my view the desire to dispose of one's acquired property, especially where it falls outside the normal ambit of what would be acquired by remaining in an exclusive "egalitarian" society of a village community, and to dispose by specific means which may or may not accord with customary views on who should receive benefits on a person's death, is something which is certainly not inconsistent with legitimate needs and aspirations. I do not believe that the framers of the Constitution in setting forth the desire to press for "equitable distribution of income and other benefits of development in Goal 2(3)" would have had in mind a prohibition on a citizen distributing his own income and benefits according to his wishes following his death. And even if they did have some intention to encourage a wide distribution of a deceased's estate, at most that could be said to a hope and direction which might be taken, all things being perfect. However as I say, I do not think there is anything contained in the Goals which is either contrary to my interpretation or supports any submission made by Mr Haynes based on the fact that in a traditional sense the majority of communities in this country may certainly be described as "egalitarian".


I believe it would be a grave error to assume that all traditional societies disapprove of wealth and power being vested in one family.


Continuing now with the specific question concerning disposition of the intestate part of the estate under the deceased's will. To put it in a nutshell the question is simply this:


Where part of the estate of a deceased automatic citizen must proceed on the basis of intestacy, are the rules applying governed by customary law and therefore the procedure set forth in the Native Regulations or are they deemed to be controlled by the provisions dealing with intestacy under the Wills Probate and Administration Act? As I have already pointed out, Regulation 144 is to my mind quite clear, namely that where there is no will at all then distribution will be effected in accordance with custom. I do not think I can obtain any assistance at all from Doa Minch's ease (supra (22)) or from the earlier case of Re Bimai-Noimbano, Deceased (23) as neither of those cases dealt with the problem of a will being in existence at the time of death and where portion of the will was inoperative, thus creating a partial intestacy. Again, what is essentially involve here is a choice of law rule and one would think at first flush that where a will was made under an Act, which Act provided not only for the manner in which such will should be made but the way in which intestate estates should be distributed and that where part of the estate must of necessity be treated as an intestacy because of deficiencies in the will, then that Act would apply. I am particularly attracted to Mr Molloy's submission that all the Acts "are set out in a scheme", and I consider his submissions obtain particular cogency where he refers to s.88 (2) of the Wills Probate and Administration Act 1966. The heading for this division is "Distribution of Intestate's Residuary Estate", and whilst it is true that our Interpretation Act forbids regard being taken of the headings and sub-headings of an Act in order to assist in interpretation, that is not to say that one may not look at such headings with a view to ascertaining what in general is being sought to be dealt with in the particular division. 88 (2) reads:

"In the application of this Division to the estate of a person who dies leaving him surviving more wives than one under valid native customary marriages, any residuary estate or share in an estate to which a single wife would, under this Division, be entitled shall be divided between those wives."


Now I do not dismiss the suggestion by Mr Haynes that this section may of course cover non-citizens, that is expatriates who by custom have several wives. But I have no doubt whatsoever that the section was primarily and almost exclusively directed to the automatic citizens of this country. I do not think there could be a clearer legislative statement of intention that the division dealing with distribution of intestate estates was meant firstly to apply to citizens and secondly to those citizens who had made a will but left part of the estate undistributed. One must bear in mind that when the Wills Probate and Administration Act came into operation in May of 1970, s.6A was brought into existence on the same day by virtue of Act No. 52 of 1970. That amendment of course specifically referred, inter alia, to Part IV of the Papua Native Regulations and repealed Regulation 143 thereof. This enactment confirms, in my view, the interpretation that the word "will" in Regulation 144 conveyed at least, and if nothing else, the meaning of a will made under the statute and that where the "will" was in part deficient the provisions of the Act applied to the intestacy.


Question 8(c)


"Who is entitled to administer the intestate estate of the deceased?"


In the light of my earlier rulings, it is obvious that one must go to s.92 of the Wills Probate and Administration Act 1966 which makes the personal representative (that is the executor), trustee for such part of the remaining estate as is not intended for him to take beneficially. Nevertheless one must bear in mind the provisions of both s.6 and s.13 of the Act. The latter section makes it clear that where native custom dictates how and in what way rights in property shall pass by will, such dictates must be observed in the will. Insofar as the will fails to carry out those dictates, then any disposition contrary to custom is invalid. If I may illustrate by way of example - a testator makes a will devising certain land under Torrens title together with shares and insurance policies to particular beneficiaries, and in addition purports to devise interest in land held by customary tenure and certain traditional items being an ancestral mask, some tambu shell, implements used for traditional carving, and certain charms used in the making of "innocent sorcery", all of which items are covered by strict rules of succession within the tribal group. The estate of course will be partially intestate because the will covers matters which are prohibited. It seems logical to me that if the items should never have been included in the will in the first place, then any partial intestacy created by such inclusion cannot be dealt with under the intestacy provisions of the Wills Probate and Administration Act but must be dealt with under the Native Regulations and by customary law, insofar as the land and traditional effects are concerned. The administration of such intestate estate would have nothing to do with the executor and trustee appointed under the will. The beneficiaries of such items would obtain their interest not by virtue of ss. 91 and 92 of the Wills Probate and Administration Act but by customary law as applied under the Native Regulations.


It seems to me that the interests making up the deceased's estate in the present matter fall well outside the interests dealt with under customary law, though the rulings of the Pre Independence Supreme Court of Doa Minch (supra (22)) and Re Bimai-Noimbano (supra (23)) emphasise the fact that customary law is not a set of unchangeable principles. In the present Case Stated I find not only are Messrs W.N. Johns and D.M. Ferrie duly appointed under a valid will but are thereby entitled to administer that part of the estate which has become partially Intestate.


Question 8(d)


"Who is entitled to share in the intestacy?"


Such entitlement will be guided by the provisions of the Wills Probate and Administration Act 1966, Part III Div. 6, and more particularly in this instance the widow and children of that union.


Question 8(e):


"If the Wills Probate and Administration Act 1966 applies in respect of the intestate estate, is Baima Sannga, the deceased's wife by customary marriage, a wife within the meaning of that term as used in the said Act?"


Yes. Long before the commencement of the Native Customs (Recognition) Act the wife of a customary marriage was recognised in this country as a legitimate and lawful wife. Had there been any doubt prior to the commencement of the Act, the provisions of ss. 6 and 8(f) would have resolved such doubts. However I do not think the courts either before or since Independence have indicated any view to the contrary and I do not consider it necessary to spend further time on this issue.


Question 9:


"When, if at all, can customary beneficiaries apply for reasonable provision out of the estate of the deceased?"


Again the answer to this question depends upon whether or not the provisions of the Wills Probate and Administration Act apply. In the present circumstances the beneficiaries under the intestacy are laid down in the Act. As I mentioned earlier in this judgment, it may well be that the failure by the testator to provide for certain members of his family could lead to an application under the Testators Family Maintenance Act. However that is not a matter which is before me and may well be the subject of other proceedings if the persons affected are not adequately provided for under the distribution of the intestate estate. I find that if the customary beneficiaries do not fall within the terms of the Act, Part III Div. 6, they have no claim on the estate.


Question 10:


"By whom out of what fund should the costs of and incidental to this action and special case be paid?"


The only argument raised under this heading deals with counsel's fees and more particularly whether the estate should be held liable for costs and fees of overseas counsel. I do not think there can be any doubt that the estate must be held responsible for the costs involved in endeavouring to establish the legal position following the death of this young man. Mr Haynes has graciously and properly conceded that it was quite reasonable for the application to be contested. The Court has been greatly assisted by the comprehensive and clear submissions put before it by learned counsel for both parties. The questions submitted are of major importance and somewhat complex. The amount involved could be quite considerable. Mr Haynes however, relying on Order 91 Rule 81A of National Court Rules and Supreme Court decision Jordan v. Edwards (24), submits that I should not issue a certificate certifying the fees, costs and expenses of overseas counsel. It is true that this entire case revolves around the interpretation and application of legislation, much of which is peculiar to this country. That does not necessarily carry with it the corollary that local counsel should therefore be used. In matters of this complexity one must bear in mind that the number of experienced counsel even yet available in Port Moresby is very limited and I think the courts must be very careful to avoid forcing a litigant to exercise what might well amount to a Hobson's choice.


In addition Mr Molloy was assisted from time to time by a national lawyer from the firm of solicitors which had briefed him and no doubt that lawyer obtained considerable guidance and experience from being able to participate in such a case. I think the stage has arisen where the absence of a national lawyer assisting an overseas counsel may be a significant factor in deciding whether or not to grant certification. In the present circumstances I do not propose to accede to the request for denying certification and consequently I overrule Mr Haynes' objections. Certification is thus granted for fees, costs and expenses of overseas counsel under Order 91 Ryle 81A. All costs to be met by the Estate.


Solicitor for the Plaintiff: C. Haynes
Counsel: C.Haynes


Solicitor for the Defendants: Francis & Francis
Counsel: I. Molloy

[1] [1843] EngR 932
[2] (1868) L.R. 1 P. & D. 543
[3] (1848) 1 Rob Ecc 675; 163 ER 1175
[4] 2 Rob. Ecc. 192
[5] (1851) 7 Moo. P.C.C. 320
[6] (1860) 30 L.J.P. 55
[7] (1978) P.N.G.L.R. 253
[8] (1976) P.N.G.L.R. 427
[9] (1962) 2 All E.R. 829
[10] (1980) 25 S.A.S.R. 423
[11] (1865) L.R. 1 P. & D. 57

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/1982/18.html