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Rasch v Akibwib [1980] NRSC 17; [1969-1982] NLR (B) 145 (21 August 1980)

[1969-1982] NLR (B) 145

IN THE SUPREME COURT OF NAURU

Land Appeals Nos. 3, 4 and 5 of 1980

EIDIOGIN RASCH AND OTHERS

v.

NATALE AKIBWIB AND ANOTHER

DEATAK DARAGAUW AND ANOTHER

v.

NATALE AKIBWIB AND ANOTHER

21st August, 1980.

Estate of deceased Nauruan - will - Nauruan custom - requirements for validity of will.

A., a Nauruan male, wrote on a piece of paper a statement of his testamentary intention, told a work-mate that it disposed of his property and put it away in his tool-box at his place of work. After his death it was found in the tool-box. The Nauru Lands Committee decided that effect should be given to it as a valid testamentary disposition. The persons entitled to share in A.'s estate upon his intestacy appealed against that decision.

Held: Although the Wills Act 1837 of England does not apply to the wills of Nauruans, Nauruan custom requires that, for a Nauruan's will to be valid, it must be made in the presence of persons who to-day have standing in the community similar to that of Chiefs in the past. Accordingly, the document written by A. was not a valid will.

Appeal allowed.

R. Kun for appellants Eidiugin Rasch and Others
R. Kun and B. Dowiyogo for appellants Deatak Daragauw and Another
Respondents in person

Thompson CJ:

Aunu Boeoeo died last year. In September a document was brought to the Nauru Lands Committee. It was on a single sheet of paper, handwritten, and bore a signature "B. Aunu". The Vice Chairman of the Committee, Mr. Doguape, was familiar with Aunu's writing, having worked with him before 1960; he was satisfied that Aunu wrote the document. There was a date at the top of it "5/7/1996". The contents read (in translation) as follows:

"To the Group,

All, all remaining things that are mine should belong to Natale Akibwib and Alister Akibwib."

The document bore no signature other than Aunu's and no note that it' was made in the presence of any witness. The Nauru Lands Committee accepted that it was genuine' and was valid as Aunu's will.

Evidence has been given in this Court by Atsiwe Dedobouwa, a work-mate of Aunu, that he was present when Aunu wrote a document and told him that he was leaving his property to his sons. Atsiwe did not know the names of the sons, nor did he read the document but he saw on it a name starting with letters N.A.T. Evidence has been given that the document taken to the Nauru Lands Committee was in Aunu's tool box immediately after his death, and that Aunu put there the document which Atsiew saw him write. It is likely, therefore, that the document handed to the Nauru Lands Committee and accepted by it as Aunu's will was written by Aunu and was intended by him to be his will.

However, that does not mean that it is a valid will to which effect should be given by the Nauru Lands Committee or this Court. The Wills Act 1837 of England does not apply to the disposition of Nauruan land, by reason of section 3 of the Custom and Adopted Laws Act 1971. Nauruan custom governs that. In early times it was common for Nauruans to express their testamentary wishes orally to their Chiefs and the Chiefs ensured that effect was given to those wishes. Later, at the behest of the first Australian Administrator, Brigadier Griffiths, either the testator himself wrote down in the presence of his Chief and another person of standing the manner in which his estate was to be disposed of, or he orally told his Chief in the presence of another person of standing, and his Chief wrote it down. In either event, the testator signed it and the Chief and the other person signed it as witnesses. That is Nauruan custom to-day, with Councillors and Members of Parliament taking the place of Chiefs. It is quite as strict as English law, so far as witnessing of wills is concerned. A will not properly witnessed is not valid, even though there may be no doubt that it was-made by the deceased person. Accordingly, the Nauru Lands Committee was wrong to accept as Aunu's will the document given to it.

There being no will, the Committee should have held a meeting of the family -to see whether any agreement could be reached on the disposition of Aunu's estate. But, as it accepted the will, no consideration was given to whether agreement could be reached. The Committee must see now if agreement can be reached. If it cannot, the estate must be distributed in accordance with the provisions of paragraph (3) of Administration Order No. 3 of 1938. There is no doubt that all the property which Aunu had inherited from his mother and her relatives should pass to the second respondents, who are his half-brother and half-sister, in equal shares. That property is all the portions of land shown on page 3 of Gazette No. 33 Of 1980 and, of those shown on page 4, the portions named Atumurumur, Arekogo, Yaren (or Moure) and Gagauwongo, and also portion no. 46 named Ugiangang (coconut land) and portion no. 191 Atumurumur (coconut land). The other land; i.e those portions named Anoab, Bogetsiw and Uroe, on page 4 of that Gazette were inherited by Aunu from his paternal grandmother. It appears that at the time of his death Aunu was not married. If so, the land inherited from his paternal grandmother should pass, in accordance with paragraph (3) (a) of Administration Order No. 3 of 1938 to his nearest relatives of the same tribe as his paternal grandmother, i.e. the first appellants. The respondents, not being of the same tribe, are not entitled to share in it.

Accordingly, the appeals of both the first and the second appellants are allowed. The decision of the Nauru Lands Committee published in Gazette Notice No. 200 of 1980, and amplified in respect of the lands Ugiangang and Atumurumur in Gazette Notice No. 259 of 1980, is set aside. The purported will is declared invalid and Aunu is declared to have died intestate. The Nauru Lands Committee is directed to deal now with Aunu's estate on the-basis of his having died intestate, i.e. first to see if agreement of the family can be reached and, if not, to distribute the estate in accordance with the provisions of Administration Order No. 3 of 1938.