N10078

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WPA NO. 102 OF 2022

IN THE MATTER OF THE WILLS PROBATE AND ADMINISTRATION ACT CH.291

AND:
IN THE MATTER OF THE ESTATE OF THE LATE MICHAEL YAIPUPU, LATE OF KUPIYAPOS VILLAGE, WAPENAMANDA DISTRICT, ENGA PROVINCE, PAPUA NEW GUINEA

Waigani: Tamade AJ
2022: 28th November & 2nd December

LETTERS OF ADMINISTRATION – deceased died intestate – application for administration by first born son of first wife – compliance with Order 19 of the National Court Rules and Wills, Probate and Administration Act, s 38 – second wife of deceased opposing the application – considerations for grant of administration – ability and credibility to manage estate – impartiality 

Legislation:

Wills Probate and Administration Act 1966
Public Curator’s Act 1951
National Court Rules 

Counsel:	

Mr. Allan Mana, for the Applicant
Mr. Solomon Wanis, for the Joinder

2nd December, 2022

1. 	TAMADE, AJ:  This is an application for Letters of Administration pursuant to the Wills Probate and Administration Act by Mr. Emmanuel Yai- Pupu the son of the Late Michael Yai-Pupu Late of Kupiyapos Village, Wapenamanda District, Enga Province who died intestate on 25 May 2022.

2. 	At the hearing of the matter, Mr. Wanis appeared for an interested party being the customary second wife of the deceased who sought to be joined to the proceedings. The Court granted leave to the Applicant Mrs. Jessie Yai-Pupu to be a party to these proceedings as Mr. Mana of the Applicant had no issues with the joinder as from his instructions, Mrs. Yai-Pupu being the second wife of the deceased is recognized by Mr. Mana’s client as being a beneficiary to the estate of the deceased.

3. 	After Mr. Wanis’ client was joined, he then sought an adjournment of the matter seeking to file an application to challenge the grant of the letters of Administration as his client also wants to be granted the Letters of Administration over the estate of the deceased. Mr. Mana opposed the application for adjournment on the basis that the matter was adjourned consecutively to allow for Mr. Wanis to appear. The Court ruled that the application for adjournment was refused as it appears that Mr. Wanis’ client was intending to derail the hearing when they had the opportunity to prepare and appear after previous adjournments were granted.  The Court then proceeded to hear the matter being an application by Mr. Emmanuel Yai-pupu for the grant of Letters of Administration and the objections by Mrs. Jessie Yai-Pupu through her lawyer Mr. Wanis.

4. 	The Applicant Mr. Emmanuel Yai-Pupu has filed the following documents complying with the Rules for the grant of Letters of Administration pursuant to the Wills Probate and Administration Act and Order 19 of the National Court Rules. These are:

a)	A Summons
b)	An Affidavit of Death
c)	Affidavit of Publication and Search
d)	Oath of Office by Emmanuel Yai-Pupu
e)	Affidavit of Application for Administration By the Administrator 
f)	Notice of Intended Application for Administration
g)	Affidavit of Search By Registrar General’s Office for Adoption and Legitimisation and
h)	About 24 Consent to Administration by the respective children of the deceased and his various de fecto spouses.

5. 	On 21 September 2022, An Objection was filed at the National Court Registry by Mr. Umbu Pakea against the grant of the administration of the estate of the deceased. This objection as submitted by Mr. Mana of the Applicant was withdrawn.

6. 	Mrs. Jessie Yai-Pupu is in essence seeking to object to the grant of the administration of the deceased estate to Mr. Emmanuel Yai-Pupu who is her son from the first customary spouse to the deceased.  Mrs. Yai-Pupu through Mr. Wanis insists that the grant of administration should be granted to her instead of Mr. Emmanuel Yai-Pupu. The verbal application by Mrs. Jessie-Yai-Pupu is supported by the Affidavit of her four children with the deceased, KingLloyd, Abraham, Mission, and Belladonna Yai-Pupu.

Application by Emmanuel Yai-Pupu

7. 	Emmanuel Yai-Pupu states in evidence that he has been nominated by the majority of this family at large to act as the Administrator of the deceased estate. He is the eldest son of the first marriage of the deceased. His mother passed away in 2001 and his father took on Mrs. Jessie Yai-Pupu as well as other women as de facto spouses. There are 18 children of the deceased and 15 additional de facto spouses of the deceased. Emmanuel states that he had no knowledge that Jessie and her children would be objecting to the application for administration of the estate as there was no communication between the parties however, he wrote to them on 3 November 2022. Emmanuel states that by Engan custom, the natural next of kin after the passing of the deceased would be his first wife however where his first wife has since pre-deceased his father, he would be the next in line as next of kin. This is why he has overwhelming support from all his siblings, relatives, and the de facto spouses of the deceased except Jessie Yai-Pupu and her four children. There is corroboration of this evidence as to custom by other family members who consent to Emmanuel being granted the administration of his father’s estate.

8. 	Emmanuel Yai-Pupu as the Applicant also states in his Affidavit that he holds a Bachelor of Business Management and Leadership from the University of Southern Queensland and has worked with two Australian Companies. He returned to PNG in 2015 following his late father’s request to help manage the family business and states that he is the closest to his father who had confided in him and entrusted him with finance, locks, and access to the assets of the business including a safe which contains important documents and valuables. Emmanuel states that he is well placed to take care of the estate of the deceased which includes companies and assets estimated to be to the value of under K800 million. He also states that he is minded that all the beneficiaries of the estate of his father including Jessie Yai-Pupu and her children who are his siblings will all be included in the distribution of his father’s estate.

Jessie Yai-Pupu’s evidence objecting to the grant of Letters of  Administration of Late Mr. Michael Yai-Pupu

9. 	Mrs. Jessie Yai-Pupu claims that she is the second wife of the Late Michael Yai-pupu. She states that after Emmanuel’s mother passed away in 2001, she helped raise all the children of the deceased. She asserts that she is closely connected to the businesses of the deceased as she is also a signatory to some of the company bank accounts and has a fair knowledge of the status of the businesses. She states that she has a master’s degree in Public Health from the University of Woolongong in NSW in Australia and is now a Senior Technical Officer and Public Health Specialist with the World Health Organisation. 

10. 	Mrs. Jessica Yai-Pupu states that she has four children who support her in her application. She also acknowledges that there are other women whom the deceased has had relationships with but denies that these other women have any right to be referred to as customary wives and insist that they are only women whom the deceased had extra-marital affairs with. She claims that she is the only recognized wife of the deceased after the passing of the deceased first wife and that she is also the matriarch of the Yai-Pupu household having raised all the children of the deceased from his various wives. 

11. 	Jessica challenges the credibility of Emmanuel by alleging that Emmanuel is not capable of administering the estate of his father as he was involved with his other siblings to attack her son, King Lloyd Yai-Pupu in which a complaint was lodged with the police. Emmanuel however denies any involvement in this incident. Jessie also alleges that Emmanuel is not a fit and proper person to justly administer his late father’s estate as he has unlawfully removed a CAT Excavator 30-tonne machine and sold the machine owned by the deceased company for a substantial sum without the knowledge of the directors of the company and took the proceeds. There is no evidence from Jessie’s Affidavit of a police report or OB number of the police complaint and therefore I take this as only an allegation.

12. 	Jessie also states that she is the only surviving director of the deceased holding company PNG Bottling Industries Limited and that she is the surviving signatory to the various bank accounts with BSP, Kina, and Westpac Bank of which the deceased and her managed the business. She also states that she is a guarantor to the existing loan by PNG Bottling Industries and has a good understanding of the business landscape of the deceased companies to be able to be appointed as Administrator. Jessie also states that since her husband’s passing early this year, she has taken charge of the business in order to manage outstanding loan commitments of the business, etc.

13. 	It appears to me that Mrs. Jessie Yai-Pupu and her children have much control and management of the businesses of the deceased with her daughter Belladonna Yai-Pupu as company secretary and director over various business entities owned by the deceased. From the evidence and submissions from parties, only four of the companies are in operation with substantial assets and value. Be that, that is the status of the operations of the businesses and companies, Jessie and her children state that the Court should not believe the Affidavit of one Jacob Arungi who was a former accountant to the various companies owned by the deceased who gave evidence that Jessie has not prudently run the business since the passing of Late Mr. Yai-Pupu. Mr. Arungi supports Emmanuel to take the reign over the estate of the Late Mr. Yai-pupu.

14. 	Towards the closing submissions, Mr. Mana has reaffirmed the point that Mrs. Jessie Yai-Pupu does not have an application for administration over the estate of the Late Michael Yai-Pupu. I reject the claims over the credibility of Emmanuel Yai-Pupu as the police claims are only allegations and they remain allegations unless Emmanuel is convicted by a Criminal Court. As to the Affidavit of Mr. Arungi, there may be some malice, or ill will as the relationship had turned sour in my view between Jessie who was managing the business, and Mr. Arungi who left his job as the accountant to the deceased business after Mr. Yai-Pupu passed.

15. 	I uphold the submissions by Mr. Mana that there is no application by Mrs. Jessie Yai-Pupu for Letters of Administration and even if there is, her support is only confined to her immediate 4 children. The majority of the family in the 14 children and all the other de facto spouses and immediate relatives support Emmanuel Yai-Pupu in the grant for the administration of the estate. I am also satisfied that he is also well placed in his educational qualification to oversee the estate.

16. 	I am of the view that Mrs. Jessie Yai-Pupu has competing interests with other de facto spouses of the deceased and the fact that only her children to a certain extent are involved in the management of the deceased business affairs tells me that she stands to be seen to be biased or prejudiced  from an independent third party view in distributing the estate of the deceased to the beneficiaries and that Emmanuel, on the other hand, would be more inclusive of every beneficiary, children and spouses of the deceased together.

17. 	I am of the view that the considerations for the grant of administration, in this case, are on two factors;

a)	The ability and the credibility to manage the estate on behalf of the beneficiaries and;
b)	The impartiality to be seen to be fair in the distribution of the estate to the beneficiaries.

18. 	As to Jessie’s approach to the Public Curator prior to coming to Court, I am satisfied that Emmanuel Yai-Pupu has written to the Public Curator’s Office on 27 October 2022 with the intention to apply for the grant of administration of his father’s estate pursuant to section 9(2) of the Public Curator’s Act 1951. The application was therefore heard on 28 November 2022. It follows that the grant of administration to the estate of the Late Mr. Michael Yai-Pupu shall be granted to Emmanuel Yai-Pupu.

19. 	The Court, therefore, makes the following orders:

i)	Pursuant to section 38 of the Wills Probate and Administration Act 1966, the administration of the estate of the Late Mr. Michael Yai-Pupu, of Kupiyapos village, Wapenamanda District, Enga Province is granted to Mr. Emmanuel Yai-Pupu.

Orders accordingly.
________________________________________________________________
Cross Chambers Westgarth Lawyers: Lawyers for the Applicant
Solomon Wanis Lawyers	: Lawyers for the Joinder