N4281

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WPA NO. 1 OF 2011

IN THE ESTATE of DARIUS TALI,
late of Siasii Village, Morobe Province, Papua New Guinea,
High School Teacher, Deceased, Intestate

Waigani: Davani, J
2011: 20th April
 
WILLS PROBATE AND ADMINISTRATION – Grant of Letters of Administration – Personal representative deceased – a ground to revoke grant of Letters of Administration – s.41(2)(a)(b)(i)(ii) of Wills Probate and Administration Act

WILLS PROBATE AND ADMINISTRATION – Fraud perpetrated upon grant of Letters of Administration – continuation will prevent due administration of the estate – a ground to revoke grant of Letters of Administration

Facts

Darius Tali ('deceased') died intestate. A Gordon Tali applied for Letters of Administration which were granted. However, it was later discovered that Gordon Tali was already deceased, when Letters of Administration were granted to him.

Norman Tali, deceased's son, applies to revoke this grant because somebody had used his deceased brother's name to apply for Letters of Administration. Apart from that, somebody had also used this grant to commence the dissipation of the deceased's estate, more particularly the sale of a house owned by his late father, the deceased.

Issue

Can the Court revoke or set aside Letters of Administration issued by the Registrar on 25th January, 2011, naming Gordon Tali as the Administrator of the late Darius Tali's estate?

Reasoning

The Court can revoke grant of Letters of Administration.

Legislation

Wills Probate and Administration Act chap 291 s.41(2)(a)(b)(i)(ii)

Text

Halsburys 4th Edition – Volume 17

Counsel:
 J. Poponawa, appearing as Friend of the Court for Norman Tali, applicant
J. Pupune for the Acting Public Curator

DECISION
20th April, 2011

1.	DAVANI .J: Mr Joseph Poponawa, lawyer appeared as friend of the Court for and on behalf of Norman Tali, the applicant. Mr Poponawa, lawyer by profession, appears to assist Mr Tali move Notice of Motion filed by Mr Tali on 8th April, 2011. I heard the application and made orders, revoking the grant of Letters of Administration. I advised counsel that I will give published reasons which I now do.

2.	I set out in full the orders sought in that Motion. They read;

"1. Pursuant to Order 4 Rule 38 of the National Court Rules 1983, the requirements for service of the Notice of Motion herein be dispensed with (if necessary).

3.	Pursuant to Order 13 Rule 21 of the National Court Rules 1983, Section 155(4) of the Constitution,, and the inherent powers and jurisdiction of the Court, the Letters of Administration granted to Gordon Tali on 25th January 2011 be stayed pending the outcome of this application (if necessary).

4.	Pursuant to Order 19 Rule 39 of the National Court Rules 1983, Norman Tali be added as a party.

5.	Pursuant to Order 12 Rule 8(2)(b), and 8(3)(a) of the National Court Rules 1983, Section 155(4) of the Constitution, and the inherent powers and jurisdiction of the Court, the Letters of Administration granted to Gordon Tali on 25th January 2011 be set aside forthwith.

6.	Pursuant to Order 12 Rule 8(2)(b), and 8(3)(a) of the National Court Rules 1983, Section 155(4) of the Constitution, and the inherent powers and jurisdiction of the Court, the Letters of Administration be granted to Norman Tali and the transfer of the property described as Section 41, Allotment 32, Erickwo, Lae, Morobe Province to Pius Polu be declared illegal and a new Title be issued by the Registrar of Titles to Norman Tali.

7.	Costs to be paid by the Office of the Public Curator.

8.	Any other orders that the Court may see appropriate.

9.	That the time of entry be abridged to the time of settlement by the Registrar which shall take place forthwith."

3. The Motion is filed on a WPA Summons taken out by the Acting Public Curator and Official Trustee, applying to have Letters of Administration granted to one Gordon Tali. The WPA Summons was filed on 17th January, 2011.

Agreed Facts

4.	The Notice of Motion filed by Normal Tal and is supported by the following affidavits;

(i)	Norman Tali, sworn on 31st March, 2011 and filed on 8th April, 2011;

(ii)	Ian Augerea, Registrar, National and Supreme Courts, sworn and filed on 8th April, 2011;

(iii)	Terry Francis, Medical Doctor, sworn on 25th March, 2011 and filed on 13th April, 2011;

(iv)	Stella Tali, sworn and filed on 13th April, 2011.

Evidence

5.	The Office of the Public Curator is represented by Mr Pupune, who is a lawyer employed by the Office of the Public Curator.

Background

6.	The applicant Norman Tali, is the natural son of the late Darius Tali ('Deceased') of Siasi Island, Morobe Province. The deceased died on 19th November, 2000. He died intestate. Letters of Administration were granted by the National Court of Justice to one Gordon Tali on 25th January, 2011.

7.	In the application for Letters of Administration, Gordon Tali consented to Letters of Administration being granted to the Public Curator who is the Administrator of the deceased's estate.

8.	By an Oath of Office dated 17th January, 2011, Julius Pololi, Acting Public Curator and Official Trustee, swore that upon grant of Letters of Administration to him, to the deceased's estate, that he will well and truly administer the deceased's estate according to law and will also render a just and true account of the administration, to the Court within 12 months from the date of grant.

9.	In his affidavit sworn on 12th January, 2011, Julius Pololi declared and swore that at the time of the deceased's death on 19th January, 2000, at Budaval Health Centre, Finschafen, Morobe Province, the deceased did not leave a will. He also deposed that at the time of his death, the deceased "was survived by his son, namely Gordon Tali (M) (DOB 27/11/1982."

10.	To that affidavit, are attached a copy of Certificate of Birth Entry for Gordon Tali and a Statutory Declaration signed by Gordon Tali on 12th January, 2011. The Statutory Declaration deposes that he is the only surviving child. I will raise the significance of this point further below.

11.	The applicant Norman Tali claims to be the deceased's son. He deposes in his affidavit sworn on 31st March, 2011 that there are also 3 other children of that relationship between his late mother and father and that 2 of those children are deceased. 

12.	Mr Norman Tali makes this application because he believes that there is fraud involved in the sale of a house owned by his late father, which house is located at Section 41 Allotment 32, Eriku, Lae, Morobe Province (the 'property'). Mr Tali also believes that the Public Curator was misled by false information given to him, one such information being that the late Gordon Tali was the only child of the deceased.

13.	Norman Tali wishes to revoke the grant of Letters of Administration to Gordon Tali after which he will then challenge the manner in which his late father's estate was dealt with by either the Public Curator's Office or the person who purchased the property, one Pius Poli.

The application

14.	The relevant Rules and Acts which the applicant relies on in moving this application are as pleaded in the Notice of Motion, terms of which are set out above. Basically, Mr Norman Tali wishes to revoke the Letters of Administration, during which time he would then pursue his challenge to the sale of the property to Pius Poli.

15.	When Mr Poponawa first appeared before me, he did not have the necessary case law and legislation, on which to rely. I adjourned the matter for about 2 days and directed that Mr Poponawa conduct research on the Common Law on what should occur or what should be placed before a Court to satisfy it that the Letters of Administration can either be revoked, set aside or amended.

16.	Mr Poponawa returned with materials that proved to be very helpful to the Court and which the Court relied on in making its final orders.

Issue

17.	The issue before me is; 

-	Can the Court revoke or set aside Letters of Administration issued by the Registrar on 25th January, 2011, naming Gordon Tali as the Administrator of the late Darius Tali's estate?

Analysis of evidence and the law

18.	Section 41 of the Wills, Probate and Administration Act chap.291 ('WPA') reads as follows;

"1041. Revocation of grant where person living

 (1) Where the National Court grants representation of the estate of a person, and it subsequently appears that he was living at the date of the grant, the Court shall revoke the grant on such terms (if any) with respect to any proceedings commenced by or against the personal representative, and in respect of costs or otherwise, as the Court thinks proper.

(2) Proceedings for the revocation of the grant may be taken by –

(a)	the person himself; or

(b)	if the person has died since the date of the grant – any person who is –

(i)	entitled to apply for representation; or

(ii) interested in the estate of the deceased person, 

and the proceedings may be by motion or otherwise in accordance with the Rules.

(3)	If a grant is revoked under Subsection (1), the personal representative under the revoked grant shall duly account for, and pay and transfer, all money and property received by or vested in him as the personal representative, and then remaining in his hands, as the National Court directs, but is not liable for any representation before the revocation.

(4)	Subsection (3) does not affect any commission, protection, indemnity, reimbursement or right to which the personal representative is entitled under this Act.

(5)	Subject to Subsection (6), the revocation of a grant under Subsection (1) does not invalidate any payment or transfer lawfully made by or to the personal representative in the course of the administration of the estate before the revocation.

(6)	Subsection (5) does not prejudice the right of –

(a)	the person supposed to be dead; or

(b)	if he has died since the date of the grant – the personal representative to whom a grant is made after the revocation; or

(c)	any other person,

other than purchasers for value without notice that the person supposed to be dead was actually alive at the date of the grant.

(7)	The person supposed to be dead, or if he has died since the date of the grant the personal representative to whom a grant is made after the revocation, is entitled to receive from the Consolidated Revenue Fund (which is, to the necessary extent, appropriated accordingly) the amount of any duty paid in respect of the revoked grant.

(8)	On the revocation of a grant under Subsection (1), the National Court may make such vesting order as it thinks proper."
 (my emphasis)

19.	Section 41(2)(b)(i)(ii) of the WPA is relevant to this application. It states that proceedings for the revocation of the grant may be taken by any person who is entitled to apply for representation or interested in the deceased's estate. It also provides that the proceedings may be by motion or otherwise and in accordance with the Rules.

20.	In this case, Mr Norman Tali, the deceased's son, is entitled to apply for representation and is also interested in the deceased's estate. He proceeds by way of Notice of Motion.

21.	Mr Poponawa also referred me to Halsbury 4th Edition Volume 17, par.1058 which states this;

"1058. Revocation on ground of false suggestion

A grant may be revoked where it has been obtained upon a false suggestion, whether made fraudulently or in ignorance where the false suggestion obscures a defect in the title to the grant; it may also be revoked where it subsequently becomes inoperative or useless, or where if allowed to subsist it would prevent the due administration of the estate.

Thus a grant may be revoked if it was obtained on the false suggestion that the person entitled to it is dead, or while an action is pending in another competent court as to the validity of a will, or by a woman claiming to be the relict of the deceased, but who was not, in fact, legally married to him, or by imposters, or by the elected guardian of a minor where there is a testamentary guardian, or by a minor on the erroneous understanding that he is of age, or by the next of kin where there is a valid residuary bequest. A grant of probate of the will of a living person will be revoked.

Revocation will not be granted where the applicant's only complaint is such as to constitute a prima facie case for an order for an inventory and account."

22.	The Common Law powers in relation to the revocation of the grant of probate or administration are set out in par.1061 of Halsburys (supra). It reads;

"1061.Revocation at the instance of the Court

Where it appears to the High Court that a grant of probate or administration ought not to have been granted or that it contains an error, the Court may call in the grant and revoke it if it is satisfied that the grant would be revoked at the instance of a party interested. If the grant cannot be called in the Court may nevertheless revoke it." 

23.	Section 44 of the WPA states that until grant of probate or Letters of Administration, the property of a deceased person vests in the Public Curator. The Public Curator may not administer the deceased's estate unless he is granted representation rights. The deceased's property vests for the purpose of administration in the person appointed by the National Court to have representation rights (Probate or Letters of Administration) (s.45(2)). If representation rights (Probate or Letters of Administration) are granted to a person other than the Public Curator, all of the property of the estate transfers from the Public Curator to that person.

24.	In this case, all of the deceased's property vested in the late Gordon Tali. I say late because the evidence before the Court is that Gordon Tali died on 19th January, 2011, confirmed by a Medical Certificate of Death issued by a Dr. H. Schildhauer, Medical Surgeon of the Braun Memorial Hospital, Finschafen, Morobe Province.

25.	In this case, the applicant Norman Tali has shown me that when Letters of Administration were taken out by the late Gordon Tali on 25th January, 2011, that he was already dead, having died on 19th January, 2011. This is just one fact which goes to demonstrate that prima facie, fraud may have occurred on the deceased's estate. The other fraudulent facts are that;

-	Norman Tali comes from a family of 3, of which 2 are already deceased. The Statutory Declarations lodged with the Registrar on the grant of Letters of Administration contain false information, that Gordon Tali was the only child in the family.

-	That the Certificates of Birth issued on 20th December, 2010 by the Registrar of Birth and Marriages contain other details that are false and which are deposed to in Norman Tali's affidavit at par.20.

26.	I noted then the position at Common Law that a grant may be revoked where it has been obtained upon a false suggestion, made fraudulently and that if allowed to subsist, will prevent the due administration of the deceased's estate (par.1058 of Halsbury (supra)). In this case, fraud has obviously been perpetrated and that the due administration of the deceased's estate will be affected, if Gordon Tali remains on record as having been granted Letters of Administration, especially now, when he is deceased. Another important factor is that if the original grant is allowed to remain, that it will prevent the due administration of the deceased's estate.

27.	Section 41(1)(2)(b)(i)(ii) of the WPA and the Common Law persuades me that this Court has the power to revoke the earlier grant of Letters of Administration to Gordon Tali.

28.	Of course, the applicant Norman Tali can take other steps in relation to the re-grant of Letters of Administration. But for the time being, the property vests in the Public Curator (s.44 of the WPA). Norman Tali should also desist from lodging any challenges to his deceased father's estate until after he has been properly vested with the appropriate powers.

29.	I will also give liberty to Norman Tali to pursue his challenge to the sale of property located at Section 41 Allotment 32, Eriku, Lae, Morobe Province, contained in State Lease Volume 4 Folio 129, subject of course to him having firstly acquired the appropriate powers.

Formal Orders

30.	These are the formal orders of the Court; 

(1)	Letters of Administration granted to Gordon Tali on 25th January, 2011 on the estate of the late Darius Tali is now revoked;

(2)	The applicant Norman Tali is at liberty to pursue his challenge to the sale of property located at Section 41 Allotment 32, Eriku, Lae, Morobe Province, contained in State Lease Volume 4 Folio 129.

_____________________________
Mr. Poponawa: Lawyer for the Applicant and appearing as friend of the Court
Mr J. Pupune: Acting Public Curator