Papua New Guinea Law Reports - 1983
[1983] PNGLR 142
SC255
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
RE JAMES ALLAN SANNGA
DECEASED
PETER YEWIE UMAI TIMEREKE
V
DUNCAN MARTIN FERRIE
AND WILLIAM HENRY JOHNS
Waigani
Kidu CJ Kapi DCJ Andrew J
25-26 November 1982
3 June 1983
WILLS - Making of - By automatic citizen - Absolute right to make statutory will - Limitations as to property that may be so disposed of - Customary land excepted - Wills, Probate and Administration Act 1966, ss 6, 6A[xx]1, 13[xxi]2 16[xxii]3, 14[xxiii]4 - Native Regulations (Papua) regs. 142 to 154.
WILLS - Validity - Defects and irregularities not invalidating - Need for Will and clear testamentary intention - “Will” - Draft will and correspondence thereon - No clear testamentary intention - Wills, Probate and Administration Act 1966, s. 43[xxiv]5.
WILLS - Probate and Administration - Partial intestacy - Personal representative under will also administrator of intestate estate - Whether other administrators may be appointed - Wills, Probate and Administration Act 1966, ss 6[xxv]6, 13[xxvi]7 72, 73, 90.
WILLS - Probate and Administration - Partial intestacy - Automatic citizen - Distribution of intestate estate - Distribution under statute - Customary law inapplicable - Wills, Probate and Administration Act 1966 Div. 6 Pt III.
WILLS - Making of - By automatic citizen - Appointment of guardians - Native and part native children - Appointment invalid - Infants Act 1956, s. 5.
The deceased an automatic citizen executed a valid will dated 13 October 1976, in which he disposed, inter alia, of personal property being shares in private companies. In 1977, the deceased gave instructions to his lawyers to draw up a new draft will. This having been done further instructions were sought and provided in correspondence between the lawyers and the deceased. On 18 July 1978, the deceased died without having executed another will.
In proceedings by relatives of the deceased disputing the validity of the will dated 13 October 1976, a case was stated for the direction of the court on certain propositions. On appeal therefrom:
Held
(1)      As the case stated was heard by the National Court before 1 January 1982, the date on which the Revised Laws came into effect, the statutory law applicable was that applicable before that date.
(2)      The combined effect of reg. 144 of The Native Regulations (Papua) and ss 6, 6A, 13, 14 and 16 of the Wills, Probate and Administration Act 1966, is that a native of Papua or an automatic citizen may make a statutory will subject to the restrictions that customary land or an interest thereto/therein may not be disposed of by such a will, and that certain other properties may not be disposed of by such a will unless such disposition is permitted by customary law.
(3)      Section 43 of the Wills, Probate and Administration Act 1966, can only be invoked where there is in existence a will which is clearly intended to be a last will and testimony.
Public Curator of Papua New Guinea v. Public Trustee of New Zealand [1976] P.N.G.L.R. 427 at 430, 431 approved and applied.
(4)      (Per Kapi DCJ) For the purposes of s. 43 of the Wills, Probate and Administration Act 1966 a “will” need not be a validly executed will under s. 18 provided it is a document or documents having the distinct character and nature of a will.
In the Estate of Knibbs [1962] 1 W.L.R. 852 at 855, 856 adopted.
(5)      The only valid will in existence was the testamentary document dated 13 October 1976. Neither the draft will nor the draft will and correspondence thereon could be treated as a will, clearly intended to be a last will, for the purposes of s. 43 of the Wills, Probate and Administration Act 1966.
(6)      With the exception of property covered by ss 6 and 13 of the Wills, Probate and Administration Act 1966, the effect of s. 92 of the said Act is that the personal representative appointed under the will in respect of the property disposed of by the will, is also the administrator of the intestate estate of the deceased.
(7)      Where there are administrators validly appointed under a statutory will, and where there is a partial intestacy no other administrators may be appointed; (per Kapi DCJ) except by order of the court on the basis of the considerations set out in ss 72, 73, and 90 of the Wills, Probate and Administration Act 1966.
(8)      Where there is a partial intestacy under a statutory will, Div. 6, Pt III, of the Wills, Probate and Administration Act 1966, makes exclusive provision for distribution of the intestate estate: customary law cannot be taken into account or override the statutory provisions.
(9)      As a consequence of s. 5 of the Infants Act 1956, the guardianship of native children and part native children, remains exclusively the province of customary law, and accordingly the appointment of a guardian of such a child in a statutory will is ineffective.
Cases Cited
Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510.
Barrs v. Bethell [1982] Ch. 294; [1981] 3 W.L.R. 874.
Baumanis v. Prauline (1980) 25 S.A.S.R. 423.
Bimai-Noimbano, Re [1967-68] P. & N.G.L.R. 256.
Clarke v. Bradlaugh (1881) 8 Q.B.D. 63.
Doa Minch, In The Lands and Goods of [1973] P.N.G.L.R. 558.
Knibbs, In the Estate of [1962] 1 W.L.R. 852; 2 All E.R. 829.
Lewis, In the Estate of [1974] 2 N.S.W.L.R. 323.
Lowe, Re [1949] V.L.R. 169.
Oyekan, Adeyinka v. Musendiku Adele [1957] 1 W.L.R. 870; 2 All E.R. 785.
Public Curator of Papua New Guinea v. Public Trustee of New Zealand [1976] P.N.G.L.R. 427.
R. v. Merionethshire (Inhabitants) (1844) 6 Q.B. 343.
R. v. Smith (1873) L.R. 8 Q.B. 146.
Rowson, In the Estate of [1944] 2 All E.R. 36.
S.C.R. No. 4 of 1980; Re petition of M.T. Somare [1981] P.N.G.L.R. 265.
S.C.R. No. 2 of 1981; Re s. 19(1)(f) of The Criminal Code [1982] P.N.G.L.R. 150.
Selwood v. Selwood [1920] All E.R. Rep. 413.
Spicer, In the goods of [1949] L.R.P.D. 441.
Stable, Re [1919]L.R.P.D. 7 
The State v. Wik Kor [1983] P.N.G.L.R. 24.
Appeal
This was an appeal from a case stated determined by Pratt J in the course of proceedings seeking to propound a will in solemn form.
Counsel
C.E.P. Haynes, for the appellant.
I. Sheppard, for the first and second respondents.
Cur. adv. vult.
3 June 1983
KIDU CJ: This appeal was argued during the November 1982 sittings of this Court. However, the commitments of the members of the Court in the last few months have not made it possible for an earlier judgment. This is not an apology, but merely an explanation for the benefit of the parties.
I deal with two preliminary matters contained in the submissions of the respondents:
“The respondent submits that two matters should be kept in mind:
(1)      The appeal can only be from his Honour’s answers to the questions asked. There was no question of appointing the Public Curator to administer the estate. The appeal is solely a review of his Honour’s answers and questions of law, or both fact and law.
(2)      The Statute law to apply is as provided in s. 13 of the Revised Laws Act 1973. All relevant matters occurred after 1 January 1976.”
There is no question that whether the Public Curator can or cannot be appointed to administer the estate is not part of this appeal. It was never argued before the National Court and was not one of the questions referred to it by the parties.
As to the second preliminary point, I do not agree that the relevant Revised Laws are applicable to this case.
The case stated to the National Court was dated 13 October 1981. It was entertained by the National Court before 1 January 1982, (the date on which the Revised Laws came into effect). Section 21 of the Revision of the Laws Act 1973 provides as follows:
“The inclusion of a law in, or the exclusion of a law from, the Revised Laws does not affect any civil or criminal proceeding previously commenced under that law, but every such proceeding may be contained and everything in relation to it may be done in all respects as if the law had not been so included or excluded.”
It seems clear that in this case the law applicable is the Wills, Probate and Administration Act 1967 applicable before 1 January 1982 and any other statutes applicable (i.e. not in the Revised Laws).
Of the eleven grounds of appeal, three (Nos. 1, 2 and 11) were abandoned when the appeal came on for hearing.
I set out the grounds argued:
“3.
(a)      The learned Judge erred in law in holding that, with the exception of customary land and property referred to in s. 13 of the Wills, Probate and Administration Act, an automatic citizen is afforded the power to make a statutory will and thereby override any provisions of his customary law to the contrary.
(b)      The specific reason why it is alleged that the learned Judge was wrong in law is:
(i)       the Court should read into s. 16(1) of the Wills, Probate and Administration Act, the emphasized words:
‘A person who has capacity according to his personal law may devise, bequeath or dispose, etc.’
4.
(a)      The learned Judge erred in law in holding that Annexures ‘A’, ‘D’ and ‘F’ of the affidavit of testamentary scripts sworn on 4 June 1981, and of the affidavit of D. M. Ferrie sworn on 19 May 1981, comprised the testamentary intentions of the deceased James Allan Sannga on the date of his death.
(b)      The specific reason why it is alleged that the learned Judge was wrong in law is:
(i)       that upon a true construction of the above-mentioned Annexures, the documents merely formed a part of the discussions between Solicitor and Client as to what might eventually form the basis upon which a will could be drawn up and fully executed.
5.
(a)      The learned Judge erred in law in holding that the abovenamed respondents were validly appointed executors and trustees of the deceased’s will.
(b)      The specific reason why it is alleged that the learned Judge was wrong in law is:
(i)       the deceased had no capacity according to customary law to appoint a non-customary administrator to administer his property.
6.
(a)      The learned Judge erred in law in holding that with the exception of property covered by ss 6 and 13 of the Wills, Probate and Administration Act, the effect of s. 92 of aforementioned Act is that the personal representative appointed under the will in respect of the property disposed of by the will, is also the administrator of the intestate estate of the deceased.
(b)      The specific reason why it is alleged that the learned Judge was wrong in law is:
(i)       the administration of the intestate estate of a deceased automatic citizen is governed by the Native Regulations and in particular customary law, and not by the Wills, Probate and Administration Act.
7.       The learned Judge was wrong in law in failing to hold that if an administrator has been validly appointed under a statutory will, he could be passed over in favour of another personal representative (in particular the customary administrator or the Public Curator), where the deceased has partially disposed of his property and it is difficult if not impossible to separate the property which is to be distributed in accordance with the will from that which devolves in accordance with customary law on the intestacy.
8.
(a)      The learned Judge erred in law in holding that prima facie Mr Duncan Martin Ferrie had been validly appointed a joint guardian together with the surviving mother, of the deceased’s son Edward Sannga.
(b)      The specific reasons why it is alleged that the learned Judge was wrong in law are:
(i)       the Infants Act which makes provision for joint guardianship by the surviving mother and a person appointed guardian by will does not apply in respect of automatic citizens.
(ii)      the effect of s. 9 of the Native Customs (Recognition) Act is that customary law of guardianship applies prima facie to determine who is the guardian of automatic citizens.
9.
(a)      If the learned Judge was correct in holding that there was an intestacy in respect of half of the entire estate of the deceased, he erred in law in holding that the intestate part of the estate was to be distributed according to Pt III, Div. 6 of the Wills, Probate and Administration Act and not according to the personal customary law of the deceased.
(b)      The specific reason why it is alleged that the learned Judge was wrong in law is:
(i)       the provisions of the Native Regulations, and more particularly customary law, apply both to a total and a partial intestacy.
10.
(a)      The learned Judge erred in law in holding that customary beneficiaries can apply for reasonable provision out of the estate of a deceased person only when such beneficiaries fall within the category of claimants mentioned in Pt III, Div. 6 of the Wills, Probate and Administration Act.
(b)      The specific reason why it is alleged that the learned Judge was wrong in law is:
(i)       he failed to develop the underlying law consistent with the principles as set out in Schedule 2.3(1) of the National Constitution, and in particular the National Goals and Directive Principles.”
GROUND 3
Section 16 of the Wills, Probate and Administration Act 1966 provided as follows:
“s16(1)         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 either at law or in equity at the time of his death, and which, if not so devised, bequeathed or disposed of, would devolve upon his executor or administrator.
(2)      The power given by this section extends to:
(a)      an estate pur autre vie whether there is or is not a special occupant thereof and whether the estate is freehold or of any other tenure and whether it is a corporeal or incorporeal hereditament;
(b)      a contingent, executory or other future interest in real or personal estate whether the testator is or is not ascertained as the person or one of the persons in whom that interest may become vested, and whether he is entitled to that interest under the instrument by which it was created or under a disposition thereof by deed or will;
(c)      a right of entry for condition broken and every other right of entry; and
(d)      an estate, interest, right or other real or personal estate mentioned in this section to which the testator is entitled at the time of his death, notwithstanding that he became so entitled subsequently to the execution of his will.”
The exceptions to the properties that can be included in wills are mentioned in s. 6 of the Act and reg. 144 of the Native Regulations (Papua) of 1939. Section 6 provided:
“Nothing in this Act contained applies to or in relation to native land.”
This same provision was contained in reg. 142 of the Native Regulations (Papua):
“A native cannot dispose by will of any interest possessed by him in land when such interest is possessed by him simply because he is a native.”
The Act (s. 13) also provided as follows:
“The application of this Division extends to and in relation to any property the right 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.”
Despite these provisions counsel for the appellant submitted in the National Court and this Court that Papuan Natives (i.e. automatic citizens) do not have the necessary capacity to make statutory wills unless allowed by their customary law. He submitted that Pt. IV of the Native Regulations (Papua) governs succession to property owned by a Papuan automatic citizen and the provisions of the Wills, Probate and Administration Act have no application to automatic citizens. Part IV of the Native Regulations contained ss 142 to 154.
Part IV Property of Deceased Natives
Devolution of property
142.    A native cannot dispose by will of any interest possessed by him in land when such interest is possessed by him simply because he is a native.
143.    The general laws of the Territory relating to the Devolution and Administration of the Intestate Estates of Deceased Persons shall not apply to the intestate estates of deceased natives.
144.    In the absence of a will the property of a deceased native shall descend to those persons who in accordance with native customs are entitled to it.
145.    If, after the expiration of six years from the death of a native, any moneys remain to the credit of the estate of such native and no person has apparently a right to such moneys they shall be paid to the Treasurer of the Territory for the public use of the Territory.
Administration of Property
146.    The Lieutenant-Governor may appoint persons to be called Distributors to administer within specified districts under this regulation the effects of deceased natives who have died intestate.
147.    A Distributor as such shall have no power to deal with land or anything growing on or affixed to land.
148.    A Distributor shall have power to take possession of and administer any effects of a deceased native who has died intestate which are in his district at the time that such native dies but a Distributor need not exercise this power if he thinks that there is no necessity for him to do so.
149.    When a Distributor administers effects he shall:
(a)      collect all the effects and if necessary for any purpose sell or barter some or all of them;
(b)      find out as well as he can the debts of the deceased and pay them out of the estate. If the debts exceed the value of the effects he will pay all the creditors as far as the effects will go and in proportion to the amount of their respective debts;
(c)      after he has paid all the debts that he knows of he will distribute any effects that are left over amongst those persons who under reg. 144 are entitled to them.
150.    If effects which are not moneys remain in the hands of a Distributor because there is no person apparently entitled to them he shall sell them for money or if they are not marketable he shall get directions from the Government Secretary as to what he is to do with them. The effects or the proceeds thereof will subject to regulation remain to the credit of the estate.
151.
(1)      If a Distributor is directed by the Government Secretary to do so he must deliver up to such person as the Government Secretary may name any effects of a deceased native that are under his control as a Distributor.
(2)      The provisions of this regulation are simply intended to ensure the safe custody of the effects and are not intended to confer upon the Government Secretary any power to administer such effects.
152.    A Distributor shall not deduct anything out of any effects that he is administering by way of remuneration for his own services or those of any servant of the Government; but if the Distributor is obliged to employ the services of private persons he may pay them out of such effects for their services.
153.
(1)      Conflicting claims by natives to effects should not be decided by a Distributor as such. They should be decided as civil claims under Pt. III.
(2)      The Distributor may however if he is a Magistrate for Native Matters try the claim in his capacity of Magistrate notwithstanding that he is administering the effects which form the subject matter of such claim.
Distributors’ Reports
154.    As soon as possible after 31 December and 30 June in each year, every Distributor shall send to the Government Secretary a half-yearly report upon the estates that he has been administering; such report may be in the prescribed form.
Reg. 143 was repealed by Act No. 52 of 1970 (Wills, Probate and Administration (Amendment) Act 1970).
After Section 6 of the Principal Act the following section is inserted:
"5.      New section 6A
'6A.
(1)      Subject to Subsection (2) of this section, nothing in this Act repeals alters or affects:
(a)      Part V of the Native Administration Regulations 1974 of the Territory of New Guinea; or
(b)      Part IV of the Native Regulations, 1939, of the Territory of Papua,
as in force immediately before the commencement of this Act and in so far as those Parts relate to the intestate estates of deceased natives.
(2)      Regulation 143 of the Native Regulations, 1939, of the Territory of Papua is repealed.' " [emphasis added]
There is nothing in Pt. IV of the Native Regulations (Papua) which specifically excludes natives from making statutory wills under the Wills, Probate and Administration Act 1966. The Succession Act 1867 (Adopted) of Queensland, did not prohibit natives of Papua from making statutory wills. This Act came into operation in Papua in 1914 and was in operation in Papua until its repeal by the Wills, Probate and Administration Act 1966. The Wills Act 1956, mentioned by both Mr Haynes and Mr Malloy, never came into operation and therefore is irrelevant to the consideration of this appeal. It is clear to me that the combined effect of reg. 144 of the Native Regulations (Papua), ss 6, 6A, 13 and 16 of the Wills, Probate and Administration Act 1966 is that a native of Papua (now the Southern Region of Papua New Guinea) may make a statutory will subject to the restriction that customary land or an interest thereto/therein may not be disposed of by such a will. Section 13 of the Wills, Probate and Administration Act 1966, in an indirect manner, also prohibits the disposition of certain properties by statutory will unless such disposition is permitted by customary law. Apart from these, there are no other specific prohibitions of the kinds of property that may be disposed of by statutory will by a Papuan native (or an automatic citizen who hails from the Papuan Region of Papua New Guinea). The learned trial judge made no error of law. I dismiss this ground of appeal.
GROUND 4
It was premature to have asked the National Court to determine whether there was a will in existence and what documents formed this will. The proper time to have had this matter determined was when the will came up for probate.
Of all the documents before the National Court only that dated 13 October 1976, could be said to be a will. The National Court held that letters of instructions to his lawyer by the deceased were to be read together with this will because they reflected his testamentary intentions. With respect, I consider that a point of great importance was missed here — these letters did not relate to the will in existence at all. They related to a proposed will which, if it had been executed, would have revoked the will in existence dated 13 October 1976.
Mr Molloy submitted that the case In the Estate of Rowson [1944] 2 All E.R. 36 supported his case. The deceased in this case gave instructions to her solicitor to make a formal will. They prepared the draft but it was not executed. Her instructions were treated as a valid will. Now this is not so. That case was in substance a motion for admission to probate under the Wills Act 1837 (U.K.) s. 11, of a testamentary document executed by a member of the Women’s Auxiliary Air Force whilst in actual military service.
The judgment reads as follows:
“Wallington J I want to make it quite clear in directing that the document should be admitted to probate, that I am basing myself entirely upon the particular facts of the case and the few observations I desire to make, are not to be understood by anybody as indicating a view, even remotely, that everybody in the Women’s Auxiliary Air Force is in actual military service, and, therefore, capable of making a soldier’s will.
In this particular case I am relying in part, at all events, on what Hill J, said in Grey’s case 126 L.T. 799, namely, that the person whose documents are submitted for probate and in respect of which an order may be made by the judge of the High Court, must have been in some place for the purpose of the war, and that predicates that the person must be in the military forces.
In view of the fact that this lady was mentioned in despatches and she was in the balloon command, at another time in Bomber Command, at several stations had been in charge of the Women’s Auxiliary Air Force, and even at the date of her death was still on the strength of that Force at the depot at Innsworth in Gloucestershire, it seems to me, having regard to the circumstances in which this war was and is being carried on and to the activities she was quite plainly engaged in from time to time, it would be wrong to say she was not in actual military service, finding as a fact as I do on the evidence before me, that she was in actual military service within the meaning of the Wills Act, 1837, s. 11, I admit the document to probate.
Order accordingly.”
The case, quite clearly, is not an authority for the proposition advanced by counsel.
In the National Court the case of Baumanis v. Prauline (1980) 25 S.A.S.R. 423 was mentioned and used in relation to s. 43 of the Wills, Probate and Administration Act. In this case the deceased had given instructions to a clergyman to draft a will. This he did but the deceased did not execute it. In fact the deceased suggested some other changes. The clergyman made changes to the document and returned to the deceased but found he had died. It was held by the South Australian Supreme Court that there was no evidence that the document was intended by the deceased to be his last will and testament. There were mere instructions and not sufficient evidence to say that there was an intention that the document was meant to be his last will and testament.
In the present case the deceased made a will dated 13 October 1976. There is no contention between the parties that this will is anything else but a proper will.
Later, it seems from a letter dated 13 April 1977, (annexure B) to the deceased from Francis & Francis (Solicitors), the deceased had given instructions for a new will. A draft will was drawn up and it provided that it revoked any former wills or testamentary documents. The deceased replied in a letter dated 16 May 1977, as follows:
“Para. 1 — O.K.
Para. 2 — O.K. but add second person. I suggest Sharon Jones.
Para. 3 — I give device (sic) and equal share of all real personal estate to Duncan Martin Ferrie and equal share to be held in trust by Duncan Martin Ferrie for my son Edward.”
The lawyers, after receiving this letter, wrote (letter dated on 17 May 1977, annexure E) asking for further instructions in relation to pars 2 and 3 of the draft will. The deceased replied in a letter dated 4 June 1977, (annexure F) and this letter reads, inter alia, as follows:
“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 Ferrie would 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 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 lifetime, 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)”
Once again (and for the last time before the deceased died) the lawyers sought further instructions. No response was received and the deceased died in a motor vehicle accident in Australia on 18 July, 1979, two years after the letter referred to was sent to him by his lawyers.
The learned trial judge quite rightly ignored the draft will but in my view wrongly decided to treat annexures “D” and “F” as expressing the deceased’s testamentary intentions and read them together with the will dated 13 October 1976. There is no evidence to justify this conclusion.
The deceased intended to make a new will revoking the one dated 13 October, 1976. He most certainly did not want annexures “D” and “F” to be read together with the will in existence). In the draft will par. 1 thereof quite clearly says:
“I hereby revoke all the former Wills, Codicils and Testamentary Dispositions made by me and declare this to be my last Will and Testimony.”
In his letter of instructions dated 6 May 1977, the deceased confirmed that this was still his instruction or intention. The effect of annexures “D” and “F” is that they do not show any intention that they would operate by themselves as his will or part thereof. A formal will was to be prepared but for some reason was not finalized. Had he changed his mind? He failed to furnish further instructions as requested by his lawyers in their letter dated 20 June 1977. As I said he died on 18 July 1979, in Australia. Perhaps the deceased changed his mind about making a new will. We will never know; but one thing is for sure and that is that he left the valid will dated 16 October 1976, a will that has never been revoked.
Section 43 of the Wills, Probate and Administration Act cannot turn Exs “D” and “F” (quite clearly not related to the existing will) into part of this will. Section 43 provides as follows:
“43(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.” [emphasis added]
One should note that s. 43(1) quite clearly provides that there must be a will in existence. For s. 43 of the Wills, Probate and Administration Act to apply there must be a will to start with:
“... a will ... shall not be deemed invalid ... solely by reason of any defect or want of formality, or of any failure to comply with the provisions of this Act or any such law if it be proved that the testator intended the will to be his last will and testimony and that intention is clear ...”.
The “will” must also have been intended to be “his last will and testimony”.
In considering the application of s. 43 these two criteria must not be lost sight of. After these two criteria are complied with or found to be in existence in a document which purports to be the last will and testimony of a deceased then s. 43 will be applicable if there are allegations that there are informalities or defects present or that provisions of the Act have not been strictly complied with.
In this case annexures “D” and “F” are not wills and they are not intended on the face of them to be the last will and testimony of the deceased in question. In fact there is a will in existence dated 13 October 1976.
There are no quarrels with what Prentice DCJ (as he then was) said in the case of the Public Curator of Papua New Guinea v. Public Trustee of New Zealand [1976] P.N.G.L.R. 427. In that case there was only one document before the court, and this document quite clearly stated that it revoked any wills made in existence either in New Zealand or Papua New Guinea thereby indicating quite clearly that the document was intended to be the last will and testament of the deceased. There were some irregularities present and the application of s. 43 resulted in the will being probated. In his judgment his Honour made comments on s. 43 of the Act. At 430, 431, he said:
“... The origins of the new provisions do not appear from the statute. It seems to me that these new provisions and (others) have been inserted to provide an act more suitable to the conditions prevailing in Papua New Guinea as compared with those perhaps in other countries. My view is that the legislature has made evident and 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. The Act does not to my mind read naturally as intending to excuse a defect, or an informality, or a failure to comply with Statute; rather I find that in its repeated use of the word ‘any’ though coupled with the disjunctive ‘or’, it expresses the purpose that a clear testamentary intent may override ‘irregularities’ in a will, (subject to the qualification in sub-ss (2) and (3)).”
His Honour went on to say that provisions of the Constitution (and he made reference to the National Goals and Directive Principles, and s. 25 of the Constitution) made it quite clear that s. 43 had to be given a very wide rather than restricted interpretation. There is of course no quarrel with this. However, that case has little relevance to the facts of the case before this Court.
I agree with my brother Andrew J that it is open for the National Court to use annexures “D” and “F” to determine whether the five percent in the will dated 13 October 1976, should not read fifty percent. However, this should be left to the time when the will comes up for probate.
GROUND 5
In view of my answer to Ground 3, the answer to this ground is in that the respondents were validly appointed as executors and administrators of the deceased’s Will.
GROUND 6
Regulation 144 applies “in the absence of a will ...”. In this case there is a will. The cases of Re Bimai-Noimbano, Deceased [1967-68] P. & N.G.L.R. 256 and In the lands and goods of Doa Minch [1973] P.N.G.L.R. 558 do not help. They were cases where the deceased died leaving no will at all. Neither Clarkson J in Bimai-Noimbano nor Robson A.J in Doa Minch directed his mind at a partial intestacy situation (or full intestacy where a will fails in toto for that matter).
I agree with Pratt J that in the partial intestacy cases the Act applies and the administrator appointed under the will is administrator of the intestate part of the property.
GROUND 7
In view of my view as to Ground 6, the answer to this ground is that as there are validly appointed administrators, no other administrator may be appointed. I agree with Pratt J.
GROUND 8
In my view the answer to this ground lies in s. 5 of the Infants Act 1956:
“This Act does not apply to persons to whom the Native Childrens Act 1950 or the Part-Native Childrens Act 1950 applies.”
These two statutes were repealed by the Child Welfare Act 1961. However, s. 5 of the Infants Act was never repealed. The persons to whom the two repealed statutes applied were:
(a)      Native children — i.e. children (boys and girls not over 14 years of age) whose parents were both natives (automatic-citizens); and
(b)      Part-native children — i.e. children (boys under the age of 16 and girls under the age of 18) whose fathers were not natives and whose mothers were natives.
So, by virtue of s. 5 thereof, the Infants Act does not apply to these children. I observe here in passing that the Act would apply to such children whose fathers are natives but mothers are non-natives. The deceased child, being the off-spring of two automatic citizen parents, is not subject to the provisions of the Infants Act 1950. Guardianship of native children is still exclusively the province of customary law and therefore the appointments of the respondents as guardians were invalid.
GROUND 9
There is no need to say anything else here except that the answer to Ground 6 is relevant. This ground fails.
GROUND 10
Statutory provisions override customary law and the common law. Div 6, Pt III of the Act says who is entitled to share in the intestacy.
The development of our underlying law becomes relevant only where there is no statutory law or accepted customary law or common law. The courts have no power to disregard statutory law and apply customary law. If it is considered that the statutory provisions should be added to then only Parliament has the power to do so.
The courts have no power to rule that customary law overrides statutory law. Where a statute has quite clearly and lucidly provided for a subject matter no customary law or common law is applicable. (See the Acting Public Prosecutor v. Unmae Aumane [1980] P.N.G.L.R. 510 and S.C.R. No. 2 of 1981; Re s. 19(1)(f) of The Criminal Code, [1982] P.N.G.L.R. 151.
KAPI DCJ: The appellant’s counsel relied on eleven grounds of appeal. He abandoned the first, second and eleventh grounds of appeal. I will deal with the remaining grounds in the order they are set out in the notice of appeal.
I should point out at the outset that all references to legislation in my judgment relate to legislation before the Revised Laws of Papua New Guinea came into force on 1 January 1982. The applicable law in this case is the legislation before the Revised Laws. Proceedings in the case were commenced before the new revised laws came into force and under s. 21 of the Revision of Laws Act 1973, such proceedings may continue under the old law as though that law had not been included in the Revision.
GROUND 3
“The learned Judge erred in law in holding that, with exception of customary land and property referred to in s. 13 of the Wills, Probate and Administration Act 1966, an automatic citizen is afforded the power to make a statutory will and thereby override the provisions of the customary law to the contrary.”
It has been submitted by counsel for the appellant that the question of whether a Papuan has capacity to make a will is determined solely by custom. He comes to this view by a construction of the Native Regulations (Papua) and the Wills, Probate and Administration Act 1966. The relevant provisions are as follows:
Regulation 144 of the Native Regulations provides:
“In the absence of a will the property of a deceased native shall descend to those persons who in accordance with native custom are entitled to it.”
Section 16(1) of the Wills, Probate and Administration Act, provides:
“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 either at law or in equity at the time of his death, and which, if not so devised, bequeathed or disposed of, would devolve upon his executor or administrator.”
What is the proper construction to be given to the word “will” in reg. 144? Counsel for the appellant submitted that the word is to be construed to mean “customary will”. The learned trial Judge construed the word to mean, “statutory will”.
It is significant that the word “will” in this provision is to be construed from the point of view of the legislature which passed the law at the time. The Territory of Papua (which was known as British New Guinea) was acquired as a possession by Britain in 1888. A legislature for the colony was set up under the British Settlement Act 1877. The legislature passed the Native Regulations Ordinance of 1888, s. 5 of which provides:
“it shall be lawful for the Lieutenant Governor in Council to make regulations affecting the affairs of the natives with regard to:
...
2.       the succession to property in case of intestacy.
3.       the testamentary disposition of property.
...
7.       the observance of native customs.
...”
The Native Regulations of Papua were made in accordance with the abovenamed Ordinance. It appears that the Native Regulations of Papua only provided for the succession of property in cases of intestacy. It made no provision for testamentary disposition of property nor did it make provision for recognition of will by custom. There is no general provision in the Regulations for the recognition of custom apart from custom which deals with succession of property on intestacy and marriage. See s. 77(3) of the Regulations. This is to be contrasted with the Native Administration Regulations of New Guinea, which provided for:
(a)      succession of property on intestacy;
(b)      testamentary disposition of property in writing;
(c)      succession of property by a customary will; and
(d)      recognition of custom generally.
Under s. 10 of the Laws Repeal and Adopting Ordinance 1921 of New Guinea, custom is adopted and recognized.
In my view, it is not correct to interpret the word “will” to mean customary will. The word “will” must be interpreted in the light of the law relating to wills in the colony at the time. There appears to be no law which recognized a customary will as a source of law for application in the courts. The only law existing at that time in the colony was the Succession Act 1867. This was an Act adopted from Queensland by the Courts and Laws Adopting Ordinance 1880.
The Succession Act 1867 had a general application and a Papuan could make a statutory will. This was the law in existence when the Natives Regulations were passed. The legislature had in mind a statutory will under the abovenamed Act when passing the Regulations. The legislature was in fact referring to the general law in existence because reg. 143 of the Regulations made expressed reference to the Intestacy Act 1887 as not applicable to natives. I agree with the learned trial judge that the word “will” in reg. 144 is to be construed to mean “statutory will”.
It appears that in Papua, there was no recognition of a customary will in any legislation until the Native Customs (Recognition) Act 1963. Under this legislation, custom can be said to be recognized and enforced as a source of law in the courts. It follows from this that any customary rule which deals with the capacity of a Papuan to make a will is to be read subject to an Act of the Parliament. In other words where there is inconsistency, the Act will prevail. Any recognition of a customary will comes from the Native Customs (Recognition) Act and not the Native Regulations.
Counsel for the appellant further submitted that if the word “will” in reg. 144 is interpreted to mean statutory will (as I have interpreted it), it should be read subject to the customary rules. That is to say, the capacity of a Papuan to make a will should be determined by custom and requirements under the statute are only additional capacity requirements. I cannot accept this argument. This is reading into the Native Regulations something that is not there. For reasons known only to the legislature at the time, the Regulations are silent on the making of wills either by statute or by custom. One has to go to other laws to determine this. As I have pointed out earlier, at the time the Regulations were passed, the Succession Act 1867 was the only law applicable in the colony. The Succession Act of Queensland applied to Queenslanders. It was adopted without any modification. If the legislature intended to adopt custom to effect the Succession Act it would have said so. The capacity of a Papuan at that time was to be determined by this Succession Act.
As I have pointed out before, no Ordinance of the colony recognized custom generally.
Possession by the British of Papua was an Act of State. The effect of this is set out by Lord Denning in Adeyinka Oyeken v. Musendiku Adele [1957] 2 All E.R. 785 at 788:
“The effect of the Act of State is to give the British Crown sovereign power to make laws and to enforce them, and, therefore, the power to recognise existing rights, extinguish them, or to create new ones. In order to ascertain what rights pass to the Crown or are retained by the inhabitants, the Courts of law look, not to the treaty, but to the conduct of the British Crown. It has been laid down by their Lordships’ Board that:
‘Any inhabitant of the territory can make good in municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of his predecessors avail him nothing.’
See Vagesingji Joraversingji v. Secretary of State of India ((1924) L.R. 51, Ind. App. 357 at p. 360 per Lord Dunedin), Hoani Te Heuheu Tukino v. Aotea District Maori Land Board ([1941] 2 All E.R. 93 at p. 98). In inquiring, however, what rights are recognised, there is one guiding principle. It is this: The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected.”
On matters of customary law, the legislature at the time through the Native Regulations Ordinance 1888, delegated to the Lieutenant Governor power to make regulations. The Native Regulations of Papua did not make provisions for this and there was a gap.
This was the state of the law until the Native Customs (Recognition) Act 1963.
This Act by s. 6 recognized native custom which can be enforceable in courts. The same provision also sets out the criteria of accepting and enforcing custom. It can therefore be argued that under this Act, a Papuan could make a will in accordance with native custom (if any) which could be recognized and enforced by the courts. Such a custom would only be recognized and enforced subject to the matters set out under s. 6 of the Act. This was the position until the Wills, Probate and Administration Act 1966 which came into force on 16 November 1967. This Act repealed the provisions of the Succession Act 1867 (Queensland adopted) in its application to Papua. Counsel for the appellant submitted that this court should give a certain interpretation to s. 13 and s. 16 of the Wills, Probate and Administration Act.
First, I shall deal with s. 13 which is in the following terms:
“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 such rights may, by that custom, devolve or pass by will or in manner analogous thereto.”
Division 1 of Pt 2 deals with the making of wills. Section 13 deals with the limitation placed upon the type of property which may devolve by a statutory will by automatic citizens under this Division. This section does not deal with the question of the capacity of a Papua New Guinean to make a will. The limitation under s. 13 deals only with property which is regulated by native custom. This section does not clearly distinguish between property which is regulated by custom and property which is not regulated by custom. In attempting to make this distinction, counsel have used the terms “traditional property” as distinct from “modern property”. In my view this is not a proper interpretation or effect of s. 13. The important words in this distinction are the words “... in which are regulated by native custom ...”. Native custom is now defined by the Constitution, Sch. 1.2:
“ ‘custom’ means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial.”
See also the definition given under the Native Customs (Recognition) Act 1963.
It is clear from the definition of custom that it develops from time to time. The significance of this is that while customs may have developed in the past and in relation to what may be regarded as “traditional property”, custom is likely to develop in relation to what may be regarded as “modern property”. For instance, in some areas of Papua New Guinea, where the people have been exposed to “modern property” for over 100 years, those communities may develop a custom as to the distribution of that property upon death over this period of time. The crucial question to ask, is whether any custom has developed in relation to a particular type of property (whether it is “traditional property” or a “modern property”). Whether such a custom has developed in relation to such properties is a question of fact to be proved under the Native Customs (Recognition) Act. To illustrate the point, it would be wrong to conclude that shares in a company are “modern property”, therefore, custom can have no regulation over it. The proper approach would be to ask whether a custom in a particular community has developed, as far as distribution of company shares are concerned, upon death. In my view, it is significant to recognize the developing nature of custom over time. The customs of our people in my view are capable of development and are capable of meeting modern developments. In this regard development of custom may be regarded in the same way as development of the common law in meeting the modern developments. See In the Land and Goods of Doa Minch (supra) at 569, 570 and 571.
If a certain type of property is regulated by native custom, then the rest of s. 13:
“... insofar only as any such rights may, by that custom, devolve or pass by will or in a manner analogous thereto ...”,
is relevant.
In interpreting the second part of the provision, the important words are “devolve or pass by will or in a manner analogous thereto”. Apart from all the formal requirements of a will, the significance or characteristic of devolution of property by will is that the property passes at the will or choice of the person bequeathing it. The question to ask then is, whether custom allows any such property to pass at the will or choice of the person passing it? If custom allows such property to be passed at the choice of the person bequeathing it then he is entitled to pass that property in a will under the Wills, Probate and Administration Act. For instance, in some societies, the house of the deceased is always, in accordance with custom, passed to the eldest son if he has a son. In other words, the deceased person cannot pass property to anybody he wishes. That would be a limitation by s. 13 that such a person may not pass his house by a will under the Wills, Probate and Administration Act. To put the test in a different way, the question to ask is whether property passes by choice of the deceased or the testator or by virtue of native custom. The provisions of the Wills, Probate and Administration Act can have no operation over property which is said to come under this limitation. Such property is to be regulated by custom.
Counsel for the appellant further submitted that under s. 16(1) of the Wills, Probate and Administration Act the capacity of an automatic citizen to make a will is to be determined by custom. This submission is to be distinguished from the submission dealt with above which deals with the limitation on the type of property. This submission is dealing with the limitation on the capacity of an automatic citizen to make a will. He submitted that this provision should read:
“a person who has capacity according to his personal law may devise, bequeath or dispose of by his will ...”.
This argument was put before the learned trial judge and was rejected by him. Having read the reasons for decision of the trial judge, I am in complete agreement with the view he adopted — unreported judgment, N.379, dated 31 May 1982. To adopt counsel’s submission is in fact to amend the particular provision. This court has no such power. If it is considered that the view put forward by counsel for the appellant is the appropriate view for this country, the answer would be to amend the provision in the Parliament.
Counsel for the appellant further submitted that the view which is held that an automatic citizen has complete testamentary freedom is indirectly in violation of the National Goal and Directive Principle, set out in s. 2(3) of the Preamble to the Constitution. He submitted that by so doing, individuals will not share wealth amongst the members of their clan or relatives and concentrate wealth only in a few people. He submitted that if this is the effect of the Wills, Probate and Administration Act, this law is not suitable to the circumstances of Papua New Guinea and therefore this Court should formulate an alternative rule of law which would implement the abovenamed National Goal and Directive Principle. He submitted that this Court has power to do this under Sch. 2:3 of the Constitution. Schedule 2:3, subs. (1) is in the following terms:
“If in any particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System, and in particular the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law ...”.
Counsel for the appellant contended that the Wills, Probate and Administration Act, s. 16, if interpreted to give automatic citizens the freedom to make a will, is a rule of law that is not applicable and is inappropriate to the circumstances of Papua New Guinea. In my opinion, the words “rule of law” in Sch. 2.3, subs. (1) are to be interpreted to mean or relate to underlying law. These words relate to custom which may be adopted under Sch. 2.1 of the Constitution, and common law which may be adopted under Sch. 2.2 of the Constitution. It is these rules of law which may be said to be inapplicable or inappropriate under Sch. 2.3. An appropriate rule of law may be formulated only when there is no such law that is applicable or appropriate and no constitutional law or statute applies. See my judgment in S.C.R. No. 4 of 1980; Re Petition of M. T. Somare [1981] P.N.G.L.R. 265 at 287, and Acting Public Prosecutor v. Uname Aumane [1980] P.N.G.L.R. 510 at 543.
Schedule 2.6 of the Constitution deals with the adoption of statutes. There is no power given under this schedule to this Court to question the applicability or appropriateness of a Statute to the circumstances of Papua New Guinea. The only requirement is to adapt these laws to the circumstances of the country and to the constitutional laws under Sch. 2.7 of the Constitution. This deals with such things as names, titles, offices, persons and institutions, and to such other formal non-substantial changes. The proper application of Sch. 2.3 is to be found in S.C.R. No. 4 of 1980; Re Petition of M. T. Somare (supra). In that case, the question of the applicability and appropriateness of a principle of common law arose. To adopt counsel’s submission is to give this Court a power which is over and above the power of law-making given to the legislature under the Constitution. With respect to counsel for the appellant, this is a misconceived submission and I therefore reject it.
In the final analysis, as far as an automatic citizen is concerned, there are two systems of law under which he may choose to bequeath or dispose of his property. That is to say, he may dispose of his property by will in accordance with native custom (if any) or under the Wills, Probate and Administration Act.
GROUND 4
“The learned trial judge erred in law in holding that Annexures ‘A’, ‘D’ and ‘F’ of the affidavit of testamentary scripts sworn on 4 June 1981, and of the affidavit of Duncan Ferrie sworn on 19 May 1981, comprise the testamentary intentions of the deceased James Allan Sannga on the date of his death.”
This ground of appeal arises out of two questions raised in the case stated before the learned trial judge. These were:
“3.      If it is proved that the annexure to the affidavit of testamentary scripts, dated 13 October 1976 (including the interlineations) was written out and executed by the deceased and thereafter witnessed by Duncan Martin Ferrie, in the deceased’s presence and in the presence of each other, did the deceased leave any valid will?”.
“4.      If the answer to ‘3’ is in the affirmative:
(a)      which document or documents comprise the deceased’s will; ...”
The important documents for consideration are annexures:
“A”     — a purported will dated 13 October 1976, signed by the deceased and witnessed by Duncan Martin Ferrie and Joan Mary Ferrie.
“B”      — a letter dated 13 April, 1977, from Francis & Francis, Lawyers, to the deceased. This letter indicated instructions had been obtained regarding a draft will. The draft will enclosed in letter.
“C”     — the draft will enclosed in letter (annexure “B”).
“D”     — letter dated 6 May 1977, by the deceased to the lawyers in response to their letter (annexure “B”).
“E”      — Lawyers reply dated 17 May 1977, to deceased’s letter (annexure “D”). New matters for inclusion in the will raised by lawyers.
“F”      — Deceased reply dated 4 June 1977, further instructions on the draft will.
“G”     — Lawyers reply dated 28 June 1977, pointing out further matters and seeking further instruction.
A close examination of these documents reveal that there are two separate purported wills. The first is dated 13 October 1976, (annexure “A”). The other is a draft will by the Lawyers (annexure “C”). All the other documents (annexures “B”, “D”, “E”, “F”, “G”) relate to this last mentioned purported will (annexure “C”).
DOCUMENT DATED 13 OCTOBER 1976 (ANNEXURE “A”)
In relation to this document the learned trial Judge came to the following conclusion:
“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.”
With respect, I would agree with this conclusion. Such a will would be valid under the requirements of Wills, Probate and Administration Act, s. 18. I do not take this matter any further.
A little later on in his judgment, the learned trial Judge went on to say:
“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”.
His Honour went on to treat annexures “B” to “G” together with annexure “A” as relating to one will.
With respect, I cannot accept this. First, cl. 1 of draft will (annexure “C”) was intended to revoke all former wills. The deceased’s instructions to revoke former wills is apparent in his instructions to his lawyers (annexure “D”).
He could only have been referring to the will dated 13 October 1976, (annexure “A”). The other documents cannot be read together with annexure “A” as relating to one will.
Second, a valid will under the Wills, Probate and Administration Act can only be revoked under s. 29 of that Act. Having come to the ruling that there was a valid will, such a will could only be revoked by, as far as is relevant here, another will (s. 29(b)). The proper issue would be, do annexures “B”-”G” constitute another will. I will consider this issue separately. If there is another will then that may be read together with the first will.
I am of the opinion that before annexures “B”-”G” can be read together with annexure “A”, they must be proven to constitute another will of the deceased. In his judgment, the learned Judge referred to English authorities supporting the proposition that two documents can be read together to constitute a will. In all these cases, the documents referred to were validly executed as wills showing the testamentary intention of the deceased. In the instant case, the issue is whether the documents “B”-”G” constitute a will of the deceased.
ANNEXURES “B”-”G”
It is apparent from the lawyers’ letter dated 13 April 1977, (annexure “B”) that the deceased gave instructions to draw up a new will. The lawyers produced a draft from his instructions (annexure “C”). The deceased in his instructions to the lawyers in a document dated 6 May 1977, (annexure “D”) confirmed his instructions to revoke all former wills. It is clear from his instructions that he intended to revoke his will dated 13 October 1976, (annexure “A”) and replace it with the new will. He also gave instructions to vary cll. 2 and 3 of the lawyers draft. The lawyers in their letter dated 17 May 1977, (annexure “E”) sought clarification on the above matters. The deceased in his letter dated 4 June gave further explanation.
The lawyers in their letter dated 28 June 1977, (annexure “G”) raised the inadequacy of maintenance for the wife. At this point there appear to be no further instructions from the deceased until his death on 18 July 1979. All these documents relate to the draft will (annexure “C”). The draft will was never executed in accordance with s. 18 of the Wills, Probate and Administration Act. There cannot be said to be a valid will under this provision.
The only question that remains to be determined in relation to the documents is the application of s. 43 of the Act:
“43(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.”
Prentice DCJ (as he then was) in interpreting this provision in Public Curator of Papua New Guinea v. Public Trustee of New Zealand (supra) at 430 said:
“... It seems to me that the new provisions (and others) have been inserted to provide an Act more suitable to the conditions prevailing in Papua New Guinea as compared with those perhaps in other countries. 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.”
With respect, I would adopt this construction. This means that where a will does not comply with any requirement under the Act (such as under s. 18), such a will can still be given effect to under s. 43.
Let me now deal with the essential parts in this provision. For a will to be given effect to under this provision, there must be:
(a)      a will.
(b)      the testator intended the will to be his last will.
(c)      intention is clear.
(A) WILL
The learned trial judge discussed quite a number of cases dealing with seamens wills. These cases deal with the application of s. 11 of the Wills Act 1873 of England. This provision is similar to s. 21 of our Wills, Probate and Administration Act. They are not relevant to the construction of s. 43 of our Act. However, as these cases deal with the definition of a will before the making of Wills Act 1837, some passages from these authorities may assist in the construction of the word “will”. I will refer to these cases only for this purpose.
The word “will” in s. 43 is not to be understood in the same way as a validly executed will under s. 18. It does not have to be in writing and executed in the manner set out in s. 18. Whether it is in writing or not or executed in the prescribed manner, it must have the distinct character and nature of a will. That is, it must give directions as to the testators wishes on the disposition of his property. In this regard I adopt the passages quoted by the learned trial judge from the following case In the Estate of Knibbs [1962] 1 W.L.R. 852 at 855, 856, where Wrangham J said:
“The fundamental principle applicable to this question is contained in the Speech of Lord Selbourne, L.C., in Whyte v. Pollock (1882) 7 A.C. 400 at 405 in which he said: ‘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.’ 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 even that he was capable of making a will at the time when he uttered the words in issue. That has been the law ever since In re Stable, Dalrymple v. Campbell [1918-19] All E.R. Rep. 299, and is further laid down by Lord Sterndale M.R. in In the Estate of Beech, Beech v. Public Trustee [1922] All E.R. Rep. 106. Although, however, a testamentary act may be one not recognised by the testator to be an actual will, it must be an act which is intended to operate so far as possible as a disposition of his goods after his death. As Salter J said in Beech’s case (supra): ‘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.’ 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 after his death 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.”
Any document or words falling short of this cannot be a will within the meaning of s. 43.
Such a construction is wide enough to cover oral wills. See an article by J Griffin “Conflict of Inheritance Law and Custom in Niugini” M.L.J Vol. 1, No. 1 at 29.
Applying this to the present case, there is such a will, the draft will (annexure “C”). It gives directions on the disposition of property. All the other documents, “B”, “D”, “E”, “F” and “G” relate to this will. They are not to be regarded as separate wills but instructions and discussions relating to the final will to be drawn up.
In relation to annexure “C” the learned trial Judge said the following:
“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 bolster my view that he may well not have had a 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 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 Mitchell J in a case to which Mr Molloy has drawn my attention: Baumanis v. Prauline (1980) 25 S.A.S.R. 423. Although the wording in s. 12(2) of 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 was not the intention of the section to validate a document ‘which has not been executed at all ...’. The phrase used seems to pre-suppose some form of execution, ‘although the execution need not be such as prescribed by the Act itself.’ “
With respect, I do not agree with his Honour’s conclusions. First, there is no evidence to suggest that the deceased did not understand the contents of the draft will. Indications are that he communicated with the lawyers meaningfully about the draft will. Furthermore, I would expect that what the lawyers put in legal language in the draft was based on instructions given by the deceased — see the lawyer’s letter dated 13 April 1977, (annexure “B”). However, I agree with the learned trial Judge, as will be seen later, that annexure “C” can only be regarded as part of discussions between lawyer and client as to the final will.
Second, in my view, the learned judge fell into error in adopting a South Australian case of Baumanis v. Prauline (supra) where the court considered s. 12(2) of the South Australian Wills Act, as proper for the construction of s. 43 of our Act. The wording of the South Australian provision is significantly different from our provision. Their provision speaks about a will in a document. Their provision is applicable only where there is a document and such document must be signed by the testator. Our s. 43 is very wide and it is not confined to a will in a document or confined to documents signed by the testator. Our provision applies even if there is “any failure to comply with the provisions of the Act, or of any such law”. Our provision calls for a much wider interpretation. I would treat the draft will (annexure “C”) as an important source of evidence in determining whether there is a will at all. Having regard to the contents of this document (annexure “C”) I find that it has the characteristics and nature of a will within the meaning of s. 43.
(B) DID THE TESTATOR INTEND THE WILL TO BE HIS LAST WILL AND TESTAMENT?
This is a matter of evidence. This can be proven by recourse to the document (annexure “C”) and other extra evidence relating to the intention of the deceased. In this regard, I adopt the words of Prentice DCJ (as he then was) in Public Curator of Papua New Guinea v. Public Trustee of New Zealand (supra) at 432:
“That this may be shown not only by recourse to the will, but by evidence extra, follows I think from the phrase in s. 43 ‘...’ if it be proved that ...”
The annexures “B”, “C”, “D”, “E”, “F”, “G”, are all relevant for the purposes of determining whether the document (annexure “C”) is the last will.
It is clear from annexure “B” that annexure “C” was provided by lawyers as a draft only of the instructions obtained from the deceased. Annexure “D” shows that cll. 2 and 3 should be changed. Annexure “F” shows that he proposed further changes. It is significant that annexure “G”, the letter sent by the lawyers, pointed out the inadequate provisions for the wife in the draft will. At this point, there is no communication between the lawyers and the deceased. What happened after this point? Did the deceased give up the idea of the draft will? This has become a matter of speculation. Having regard to all the documents, I have come to the following findings:
(a)      the deceased gave instructions to lawyers to draw up a will. (annexure “B”).
(b)      the lawyers came up with a draft (annexure “C”).
(c)      further instructions were sought by the lawyers (annexures “B”, “E” and “G”).
(d)      the deceased provided further instructions (annexures “D” and “F”).
I conclude from all these documents that the deceased gave instructions to lawyers to draw up a will which he could finally execute.
The lawyers came up with a draft. Further discussions were still being held between lawyers and deceased to come up with the final will. These discussions were not completed and the final will was never drawn up.
I cannot conclude that the deceased intended the will (annexure “C”) and other instructions to be his last will and testament. There is no evidence of such a clear intention.
The only valid will that is in existence is the document dated 13 October 1976, (annexure “A”). As to the effect of this will and what it does is a question to be determined when the matter goes to the National Court for grant of probate.
GROUND 5
“The learned judge erred in law in holding that the abovenamed respondents were validly appointed executors and Trustees of the deceased’s will.”
This ground of appeal is based on the earlier ground of appeal, namely, that an automatic citizen is not given the capacity to make a will under s. 16 of the Wills, Probate and Administration Act and that it is governed by the customary law. I have already dealt with this issue in Ground 3.
GROUND 6
“The learned judge erred in law in holding that with the exception of property covered by ss 6 and 13 of the Wills, Probate and Administration Act, the effect of s. 92 of the afore-mentioned Act is that the personal representative appointed under the will in respect of the property disposed by the will, is also the administrator of the intestate estate of the deceased.”
Section 92 of the Wills, Probate and Administration Act deals with partial intestacy. Counsel for the appellant submitted that property which is not included in the will is to be distributed in accordance with custom under reg. 144 of the Native Regulations. This ground of appeal raises the issue of when or the circumstances in which the Native Regulations of Papua may be applicable. This is to be determined from the words of reg. 144 of the Native Regulations of Papua itself. The operative words are “in the absence of a will ...”. In my view, these words would cover two situations. The first is where a person dies without ever making any attempts to make a statutory will, thus there is absence of a will. A second situation is that a person may purport to make a statutory will but such a will is void and of no effect. This means that no property which was intended by the deceased may pass under the proposed will. In law there is no will, thus an absence of will. I would reject any interpretation of these words to mean “in absence of a choice to make a statutory will ...”. No question of a choice of law was in existence at the time the Native Regulations were passed. It follows from this interpretation that reg. 144 of the Native Regulations of Papua is only applicable where there is non-existence of a statutory will or a purported will which is invalid and of no effect. It does not have any application where there is a partial intestacy. If the legislature intended this, it would have said so expressly. Where there is partial intestacy then the relevant provisions within the Wills, Probate and Administration Act dealing with property which is not included in the will should regulate that property. The Native Regulations do not apply in these circumstances. Consequently, the question of s. 6(A) of the Wills, Probate and Administration Act does not arise. Assuming that there is a partial intestacy in the present case the provisions of the Wills, Probate and Administration Act would apply. I agree with the trial judge’s ruling on the effect of s. 92 of the Act.
GROUND 7
“The learned judge was wrong in law in failing to hold that if an administrator has been validly appointed under a statutory will he could be passed over in favour of another personal representative (in particular the customary administrator or the Public Curator), where the deceased has partially disposed of his property and it is difficult if not impossible to separate the property which is to be distributed in accordance with the will from that which devolves in accordance with customary law on the intestacy.”
This ground of appeal is based on the assumption that there is a valid partial statutory will under the Wills, Probate and Administration Act. The question which arises is where an administrator can pass over the administration of the estate in favour of either the Public Curator or a customary administrator. As the duties, rights and obligations of an administrator in such a will are dealt with by a statute, the Wills, Probate and Administration Act, whether these duties rights and obligations can be passed over to another representative must be answered with reference to the provisions of the Wills, Probate and Administration Act. Part 3, Div. 4, sub-div. (C) of the Wills, Probate and Administration Act deals with discharge and removal of executors and administrators and new appointments. The relevant provisions are ss 72 and 73.
“72(1) Notwithstanding anything in any other law in force in the Territory or a part of the Territory contained, where an executor or administrator to whom probate or administration has been granted, or where an administrator who has been appointed under this section:
(a)      remains out of the Territory for more than two years;
(b)      desires to be discharged from his office of executor or administrator; or
(c)      after the grant or appointment refuses or is unfit to act in that office or is incapable of acting in that office,
a Judge, upon application in a summary way by summons in chambers, may order the discharge or removal of the executor or administrator and, if the Judge thinks fit, the appointment of some proper person as administrator in place of the executor or administrator so discharged or removed, upon such terms and conditions as the Judge thinks fit, and may make all necessary orders for vesting the estate in the new administrator and as to accounts, and such order as to costs as the Judge thinks proper.
(2)      Notice of an application under this section shall be served upon such persons (if any) as the Judge directs.
(3)      From the date of the order an executor or administrator removed or discharged under this section ceases to be liable as such for acts and things done after that date.
(4)      Upon an appointment under this section, the property and rights vested in, and the liabilities properly incurred in the due administration of the estate by, the executor or administrator discharged or removed are vested in and transferred to the administrator appointed by the order, who as such has the same privileges, rights, powers, duties, discretions and liabilities as if probate or administration had been granted to him originally.”
“73(1) On being satisfied that there has been negligence or maladministration of an estate of which a person has obtained administration in the capacity of a creditor, or that the condition of an administration bond executed by a person who has obtained administration in that capacity has been broken in any substantial particular, the Court or a Judge may:
(a)      order the Registrar to assign the administration bond to the Public Curator or to some person named in the order and thereupon the provisions of paragraph (i) of Section 96 of this Ordinance apply; and
(b)      if the Court or Judge thinks fit, remove the creditor from the position of administrator and appoint the Public Curator or another person named in the order to be administrator in place of the administrator so removed, upon such terms and conditions as the court or judge thinks proper, and may make all necessary orders for vesting the estate in the new administrator and as to accounts, and such order as to costs as the court or judge thinks proper.
(2)      Upon an appointment under paragraph (b) of the last preceding subsection, the provisions of Subsection (3) and (4) of the last preceding section, so far as they are appropriate, apply as if the appointment had been made under that section.”
It seems to me the terms of ss 72 and 73 are wide enough and a customary administrator or the Public Curator may be appointed to take over the duties and obligations of an administrator. Section 73 of the Act makes express reference to the appointment of the Public Curator. Such persons can only be appointed by an order of a judge or a court on the basis of the considerations set out under those provisions.
Further under s. 90 of the Probate and Administration Act 1951 the Public Curator may petition for an order to administer an estate. Administration of a property under such will may be passed over to the Public Curator under circumstances set out under s. 90. Section 90 is as follows:
“90(1) The National Court or a Judge may, on the application of the Curator, grant to the Curator an order to administer the estate of any deceased person leaving real or personal estate within the jurisdiction in any of the following cases:
(a)      where the deceased leaves no executor, widow, widower, or next-of-kin, resident within the jurisdiction, willing and capable of acting in execution of his Will for administration of his estate.
(b)      where the executors named renounce probate of the will of the deceased, and all the persons primarily entitled to administration by writing filed with the Registrar decline to apply for administration.
(c)      where probate or administration is not applied for within three months after the death of the deceased.
(d)      where after the expiration of 30 days from the death there is no reasonable probability of application been made within the period of three months.
(e)      where the estate or any portion thereof is liable to waste, and the executor, widow, widower, or next-of-kin:
(i)       is absent from the locality of the estate;
(ii)      is not known;
(iii)     has not been found, or;
(iv)     request the Curator in writing to apply for the order.
(f)      where the estate or any portion thereof is:
(i)       of a perishable nature, or
(ii)      in danger of being lost or destroyed, and,
(g)      where great expense may be incurred by reason of delay.
(2)      The National Court or Judge may in any case require the Curator to:
(a)      give such notices;
(b)      cite such persons; or
(c)      produce such evidence as a National Court or Judge thinks fit before granting the Order applied for, or may make a temporary Order for collection and protection only or limited to a portion of the estate or otherwise.”
The Probate and Administration Act 1951 was initially repealed by the Wills, Probate and Administration Act 1966 but certain provisions of the Act including s. 90 were reinstated by s. 4 of the Wills, Probate and Administration (Amendment) Act 1970, Act No. 52 of 1970. Where there is a partial intestacy (which is assumed on this ground) the provisions of the Native Regulations of Papua do not arise. For the purposes of this particular ground of appeal, s. 4(7) of the Probate and Administration Act no longer arises as this was repealed. See in Re Bimai-Noimbano (supra), In re the Lands and Goods of Doa Minch (supra).
As far as I can see from the statutory law these are the only provisions under which duties, rights and obligations of an administrator may be passed over. A court in making orders under these provisions cannot go outside the ambit of these provisions.
GROUND 8
“The learned Judge erred in law in holding that prima facie Mr Duncan Ferrie had been validly appointed a joint guardian together with the surviving mother, of the deceased’s son Edward Sannga.”
This ground of appeal raises the proper consideration of whether the Infants Act applies to automatic citizens. Counsel for the appellant made the same submissions before the trial judge. He submitted that the Infants Act was passed to apply only to persons other than natives or part-natives. He submitted that the original intention of the Infants Act applied to non-natives and non-part natives and the Child Welfare Act applies to all persons including automatic citizens. The trial judge answered these submissions with the following words:
“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 long standing view of the law.”
It would seem to me that the trial judge did not consider this issue in detail. He accepted the assumption in other decided cases that the Infants Act applies to automatic citizens. My research of all the decided cases revealed that this issue has never been argued and determined and that the courts have proceeded on the assumption that the Infants Act applies to automatic citizens. I therefore do not consider that any decided case within our jurisdiction is authority for the proposition that the Infants Act applies to automatic citizens: Barrs v. Bethel [1981] 3 W.L.R. 874 at 887.
Section 5 of the Infants Act requires close consideration. It is in the following terms:
“The Act does not apply to a person to whom the Native Childrens Act 1950 or the Part-Native Childrens Act 1950 applies.”
It is this provision which gives the Infants Act its discriminatory application. Under s. 5 of the Act the legislature intended that the provisions of the Act should not apply to certain persons. Section 5 of the Act does not define in its own words the persons to whom the Act does not apply. It merely refers to persons to whom the Native Childrens Act 1950 or thePart-Native Childrens Act 1950 applies. The Native Childrens Act 1950 deals with a person “who is, or is commonly reputed to be, the off-spring of parents both of whom are natives”. (Section 4 of Native Childrens Act 1950). The Part-Native Childrens Act 1950 deals with a person who “is the off-spring of a father who is not a native and a mother who is a native”. (See s. 4 of Part-Native Childrens Act 1950). In effect s. 5 means that the Infants Act does not apply to a person who is or is commonly reputed to be the off-spring of parents both of whom are natives or a person who is the off-spring of a father who is not a native and a mother who is a native. In my view, this was the purpose of referring to the Native Childrens Act 1950 and Part-Native Childrens Act 1950 and Part-Native Act 1950. Section 5 of the Infants Act simply adopted or incorporated the meaning to be given to class of persons to whom the Infants Act has no application.
Both the Native Childrens Act and Part-Native Childrens Act were repealed by the Child Welfare Act 1961. What then is the effect of the repeal of these two Acts upon the meaning which is adopted or incorporated by s. 5 of the Infants Act? It has been held by Brett L.J in Clarke v. Bradlaugh (1881) 8 Q.B.D. 63 at 69:
“... there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second.”
See also R. v. Merionethshire (Inhabitants) (1844) 6 Q.B. 163. In R. v. Smith (1873) L.R. 8 Q.B. 146 at 149, Cockburn CJ stated the same principle in the following words:
“... the authorities referred clearly establish that when a prior Act or part of a prior Act is incorporated with a subsequent Act, it is the same thing as if the words of the first had been repeated in the second Act, and the repeal of the first would not take away the effect of the words which are so repeated in the second Act by incorporation.”
It follows from these authorities that the repeal of the two Acts do not affect the meaning which is adopted or incorporated under s. 5 for the purposes of the Infants Act, that is to say, the Act has no application to natives and part-natives. Section 5 of the Infants Act has not been repealed. The original intention by the legislature that the Infants Act should not apply to natives and part-natives is still in existence. This Act was adopted under the Constitution, Sch. 2.6, without any modification. Since the adoption by the Constitution, no attempts have been made by the Parliament to amend s. 5. This is a clear indication on the part of the legislature that the provisions of the Infants Act as they stand should continue to apply. It is interesting to note that the legislature when passing the Child Welfare Act intended to do away with the discriminatory provisions of the Native Childrens Act and Part-Native Childrens Act by repealing these Acts. However, the legislature did not do away with the discriminatory provisions of the Infants Act.
Insofar as the provisions relating to appointment of guardians in a will under the Infants Act is concerned, they do not apply to automatic citizens.
This conclusion leads to two important issues to be decided:
1.       Can an automatic citizen appoint a guardian of his children by a statutory will?
2.       Who has the guardianship of the child in this case?
I now address myself to the first issue. There is no provision under the Wills, Probate and Administration Act which authorizes any person to appoint a guardian under a will. It deals only with devolution of property.
As there is no other law which is applicable, this issue must be determined by reference to the underlying law. See s. 9 of the Constitution. The underlying law is prescribed under Sch. 2 of the Constitution. See s. 20(2) of the Constitution. The court may adopt a custom (Sch. 2.1), common law (Sch. 2.2) or formulate a new principle (Sch. 2.3) as part of the underlying law on the question of whether an automatic citizen can appoint a guardian under a statutory will.
In considering the development of the underlying law under these three headings, the words of Sch. 2.4 are applicable. It is in the following words:
“In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do by judicial act.”
The question which arises is this. Is it proper to adopt or formulate a rule of law relating to the issue in question by judicial act? It is clear from the terms of Sch. 2.4 of the Constitution, that the National Court and Supreme Court may decline to formulate or develop the underlying law where it considers it not proper to do so. The question is, when is it proper or not proper to do so? I considered this in The State v. Wik Kor [1983] P.N.G.L.R. 24. I considered in that case that while it was open to me to formulate a rule of law, I declined to do so on the basis that there were policy considerations which should be more appropriately dealt with by legislature than the court.
I would adopt the same approach on this issue. The court is faced with policy considerations. Should the principle of law formulated by the court be dominated by concepts of custom? Is this fair on those automatic citizens who have lost contact with custom or should it be dominated by such provisions as the Infants Act which were intended for non-automatic citizens and have no consideration for the customs of automatic citizens? Or further still, do we consider that all persons regardless of citizenship should have one law?
The legislature adopted this latter view in doing away with the Native Childrens Act 1950 and the Part-Native Childrens Act 1950 and combining them together in the Child Welfare Act which applies to all persons. In my view, these are important policy considerations which should not be decided by judges. They are matters which primarily come within the functions of the Parliament (see ss 100 and 109 of the Constitution). Having come to this view, I consider it a matter of absolute urgency that the National Parliament should give consideration to the amendment of Infants Act and update the law in this area.
It is possible to argue in future cases that the legislature may have done this by way of the Revision of Laws Act 1973. The Infants Act (Ch. No. 287) under revision of laws does not contain s. 5 of the original Act. If the view I hold about s. 5 is correct then the revision amounts to a substantial change of the law which may be contrary to s. 9 of the Revision of Laws Act 1973. This was not argued before us. If the view I hold about s. 5 of the Infants Act is correct, then the issue of the revision of the Act should be fully argued in a future case. The issue would be, by omitting s. 5 of the revision, has the first legislative counsel acted outside the power given under the Revision of Laws Act 1973? I would leave this question open.
I now turn to the second issue. The National Court when it hears the matter again will need to make an order as to the guardianship of the child. The court must have regard to those who may be entitled to be guardians under the custom. See Sch. 2.1 of the Constitution. See s. 9 of the Native Customs (Recognition) Act. Under s. 21(3) of the Village Courts Act, (Ch. No. 44) a village court may make an order on guardianship of a child. The court must have regard to custom in making the appropriate order.
GROUND 9
“If the learned trial judge was correct in holding that there was an intestacy in respect of half of the entire estate of the deceased, he erred in law in holding that the intestate part of the estate was to be distributed according to Part 3, Division 6 of the Wills, Probate and Administration Act and not according to the personal customary law of the deceased.”
I have already dealt with this in ground 7 and the simple answer would be that the Native Regulations do not apply to partial intestacy. Custom under the Native Customs Recognition Act or under Sch. 2.1 of the Constitution cannot override an Act.
GROUND 10
“The learned trial judge erred in law in holding that customary beneficiaries can apply for reasonable provision out of the estate of a deceased person only when such beneficiaries fall within the category of claimants mentioned in Pt III, Div. 6 of the Wills, Probate and Administration Act.”
The Act sets out the persons who are entitled to the estate of a deceased person. However, if there is no will at all or purported will which has no effect (that is to say, total intestacy), consideration of s. 6A of the Wills, Probate and Administration Act would arise. Section 6A was inserted by Act No. 52 of 1970. It is in the following terms:
“6A(1) Subject to Subsection (2) of this section, nothing in this Act repeals, alters or affects:
(a)      Part V of the Native Administration Regulations, 1924, of the Territory of New Guinea; or
(b)      Part IV of the Native Regulations, 1939, of the Territory of Papua,
as in force immediately before the commencement of this Act and insofar as those Parts relate to the intestate estates of deceased natives.”
Where there is no will in the two ways described before, all of the deceased’s property becomes the intestate estate of the deceased. This is where the Native Regulations become applicable. That is, that the estate will pass to those people who are entitled under the custom. If the operation of Div. 6 of Pt III of the Wills, Probate and Administration Act in its distribution of property (where there is no will), affects the distribution of property under reg. 144 of the Native Regulations of Papua, then the Native Regulations would apply. That is the purpose of s. 6A of the Act. To hold otherwise is to render s. 6A meaningless. By analysis, see the application of s. 4(7) of the repealed Probate and Administration Act. See in Re Bimai-Noimbano (supra).
I consider that the provisions of the Wills, Probate and Administration Act relating to the administration of property on full intestacy affect the operation of the Native Regulations, s. 144. Section 6A of the Wills, Probate and Administration Act, means that the Native Regulations will apply. In my view, this is the only reason for the existence of s. 6A.
Where there is a partial intestacy, the Act sets out how the property in the will and property not in the will is to be dealt with. The Parliament, the ultimate law-maker has set out what should be done. Nobody can question that. I have stated in answer to ground 3, that Sch. 2.3 is only relevant where the principles of law under Sch. 2.2 of the Constitution are inappropriate and inapplicable and there is no statute on the point of law.
It may be true that this division overlooks many who under custom should be entitled to the estate. There is nothing that the courts can do. The ultimate law-maker has spoken.
ANDREW J: I have read the judgment of the Chief Justice and am in agreement both with the reasons given and the conclusion arrived at by him but wish to add a few observations for myself.
This was an appeal from a case stated and it arose in the following way. The deceased, a Papua New Guinean died possessed of certain personal property, principally shares in private companies. The deceased’s relatives (excluding his wife and children) commenced proceedings by their representative, the plaintiff. They claimed that they were entitled to administer the deceased’s estate, to share in it and to have the care and control of his children.
The executors defended the actions and counter-claimed seeking to propound the will in solemn form.
The plaintiff’s claim involved a substantial factual dispute. It involved proving custom which was disputed and it involved proving that custom applied to the deceased which was also disputed. From these proceedings the parties agreed to a case stated.
The matter was before the National Court in October 1981 before the revised Acts came into operation so that the law applicable is the Wills, Probate and Administration Act 1966 as at that time. It is true that under s. 11 of the Revision of the Laws Act, the revised edition is the definitive statement of the laws at 1 January 1976, but the Act did not come into operation until 1 January 1982.
In relation to Ground 3, the appellant’s submission regarding capacity to make a will was, in effect, that a Papua New Guinean cannot make a will unless his customary law allows him to. The Wills, Probate and Administration Act 1966, specifically permits a Papua New Guinean to make a will by s. 16(1). The preamble to the Act refers to the estates of deceased “persons”. Under s. 16 “a person” may dispose of property by will. There is no restriction on Papua New Guineans. The capacity to make a will is a legitimate aspiration of an automatic citizen: See Public Curator of Papua New Guinea v. Public Trustee of New Zealand (supra). I am in agreement with the reasoning and conclusions of the learned trial Judge and I see no error of law.
GROUND 4
Ground 4 was as follows:
“4(a)   The learned Judge erred in law in holding that Annexures ‘A’, ‘D’ and ‘F’ of the affidavit of testamentary scripts sworn on 4 June 1981, and of the affidavit of D. M. Ferrie sworn on 19 May 1981, comprised the testamentary intentions of the deceased James Allan Sannga on the date of his death.
(b)      The specific reason why it is alleged that the learned Judge was wrong in law is:
(i)       that upon a true construction of the above-mentioned annexures, the documents merely formed a part of the discussions between solicitor and client as to what might eventually form the basis upon which a will could be drawn up and fully executed.”
The thrust of the appellant’s argument here is that the annexures “A”, “D” and “F” found by his Honour to form the deceased’s will do not comprise the deceased’s testamentary intentions but were merely discussions between the deceased and his solicitor.
The trial judge found that the document of October 1976 was a valid will which then expressed the testamentary intention of the party but that one could not look at this document alone in order to establish the testamentary intent of the deceased at the time of his death. He had recourse to s. 43 of the Wills, Probate and Administration Act and adopted the passage of Prentice Dep CJ (as he then was) in Public Curator of Papua New Guinea v. Public Trustee of New Zealand (supra) at 430 that:
“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.”
The document marked annexure “C” headed “Last Will and Testament” was rejected on the basis 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 and that s. 43 of the Act was not intended to validate a document which had not been executed at all and which was not intended to constitute a will. The trial judge found that at the most it was an indication to the solicitor that if he decided to settle on some other form of will he was agreeable to revoking any previous will that may have been made.
His Honour then found that annexures “D” and “F”, that is, the documents dated 6 May 1977, and 4 June 1977, amounted to a testamentary intention within the meaning of s. 43 of the Act. As his Honour found:
“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.”
And later ...
“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. I regard all three documents as inter-related and comprising the testamentary intent. Whilst it is true that in Annexure ‘D’ the deceased may have 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 periods of inaction after 4 June 1977, despite the receipt of Annexure ‘C’ 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.”
What in effect has been found by the trial judge is that it was the intention to divide the possessions and the share in Kame and Anga, fifty percent to Ferrie and fifty percent to Edward and not five percent as stated for the reason that if one did not construe the will in that way then there was no apparent disposition of the remaining forty-five percent of the possessions or the shares in Kame. As the three documents were inter-related and by reading them together a clear testamentary intention existed that Edward should take fifty percent.
In my view there were largely findings of fact or they were interpretations which were open to the trial judge and which are reasonable. It is not shown in my judgment, that they are wrong.
In ascertaining the testamentary intention, the intention required is that the statement of the deceased must be meant as a will in the sense that the testator intended deliberately to give expression to his wishes as to what should be done with his property in the event of his death: See Re Stable (1919) L.R.P.D. 7; Selwood v. Selwood (1920) 125 L.T. 26; Re Lowa (1949) V.L.R. 169; In Goods of Spicer (1949) L.R.P.D. at 441; In Estate of Knibbs (supra); In Estate of Lewis [1974] 2 N.S.W.L.R. 323. For example, In the Estate of Knibbs (supra), Wrangham J at 855 said:
“... 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 explicity or implicit to see that his wishes are acted on .... A man who telephoned his solicitor (under the conditions under which the privilege would be applicable) telling him what dispositions of property he intended to operate after his death, and asking him to do that which was required, would clearly be performing a testamentary act because he would not only be stating what his intentions were, but stating them in circumstances which showed that he wished his intentions to be carried out as a result of what he was then saying.”
The trial judge has found that the intention of the testator is clear in the documents annexures “A”, “D” and “F” and that they may be admitted to probate notwithstanding lack of formality. I see no error in those findings.
Orders accordingly.
Lawyers for the appellant: C. E. P. Haynes.
Lawyers for the first and second respondents: Beresford Love & Company.

[xx]Infra 171.
[xxi]Infra 147, 157.
[xxii]Infra 146, 155.
[xxiii]Infra 152, 161.
[xxiv]Infra 152, 161.
[xxv]Infra 171.
[xxvi]Infra 147, 157.