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Cragnolini v Constantinou [2021] PGNC 524; N9367 (11 August 2021)

N9367

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 55 OF 2020

CHRISTINE JOSEPHINE CRAGNOLINI
Plaintiff

-V-

SIR KOSTAS GEORGE CONSTANTINOU
First Defendant

THE ESTATE OF THE LATE SIR GEORGE CONSTANTINOU
Second Defendant

Waigani: Kariko, J
2021: 14^th July & 11^th August

PROBATE – administration of estate – application for executor to file and serve accounts and inventory of estate – administration yet to be finalized – whether court has jurisdiction –s. 59 Wills Probate & Administration Act, O19 rr72 & 73 National Court Rules

Legislation:

National Court Rules
Wills Probate & Administration Act, Ch.291

Reference material:

Law of Succession by Dal Point & Mackie
Law of Succession by Dal Point & Mackie, Second Edition
Tristram and Coote’s Probate Practice, Thirteenth Edition

Counsel:

Mr I Molloy & Mr A Paru, for the Applicant
Mr M Webb, SC & Ms J Nigs, for the Respondent

DECISION

11^th August, 2021

1. KARIKO, J: The plaintiff filed these proceedings seeking mainly an order for the first defendant to file and serve an inventory and audited accounts pursuant to s.59 of the Wills Probate & Administration Act (“the Act”).
   
2. Before hearing the substantive application, the parties were directed to address as a preliminary point, the question whether this court has jurisdiction to entertain the application.
   
3. The parties have accordingly presented arguments, and this is my ruling.
   

BRIEF BACKGROUND

4. I first set out the brief facts giving rise to these proceedings.
   
5. The plaintiff is a beneficiary of the estate of the late Sir George Constantinou (“the Estate”) who died in December 2008 leaving a Will.
   
6. The first defendant (the defendant) was appointed as executor of the Estate on 3^rd September 2019, replacing his brother who was seriously ill then and who passed on soon after.
   
7. The Estate is quite substantial, and its administration is yet to be finalized.
   
8. Presently, the parties await a reserved decision of this Court in related proceedings OS 478 of 2018 in respect of two main issues:
   
   • (1) Determining the actual number of beneficiaries; and
   • (2) Considering whether shares in the company Rouna Development Limited issued to the plaintiff and three of her siblings, should be treated as assets of the Estate.
     

ISSUE

9. The question for my determination now is whether pursuant to s.59 of the Act, the Court has jurisdiction to order the defendant, as the executor of the Estate, to file an account and inventory of the Estate?

SUBMISSIONS

10. The plaintiff pointed out that s.59 of the Act states that “When lawfully required to do so”, the executor shall exhibit on oath in the National Court a correct inventory and account of the property of the deceased. The form and procedure for filing the inventory and account is provided in Order 19 Rules 72 and 73 of the National Court Rules.
    
11. It was argued that the requirement to file an account is provided in Order 19 Rule 73(1) and that is, to file within 12 months of the grant of probate. In this case, probate was granted on 20^th March 2009. As the 12 months period had lapsed, the Court has power therefore to order the account to be produced.
    
12. Furthermore, the plaintiff submitted that there is nothing in the wording of s.59 or in the relevant Rules that suggests the executor or administrator is obliged to file an account and inventory upon completion of the administration.
    
13. The Court’s attention was also drawn to the textbook Tristram and Coote’s Probate Practice, Thirteenth Edition at [19.02] which affirms that among others, a beneficiary may call upon the executor or administrator to exhibit an inventory of the estate and furnish an account of the administration of the estate. Reference was also made to [12.30] – [1232] of the textbook Law of Succession by Dal Point & Mackie which discuss the duty to account to beneficiaries under a will.
    
14. In reply, the defendant argued the issue before the court revolves on the interpretation to be accorded to the expression “When lawfully required to do so”. It was contended that s.59 imposes no obligation on the executor or administrator to file accounts. The “lawful requirement” is not found in s.59 or in Rules 72 and 73.
    
15. The defendant submitted that the “lawful requirement” is instead a principle of the underlying law known as “the executor’s year” that places a duty on an executor or administrator to exhibit an inventory and account upon completion of the administration. Reference was made to [11.217] – [11.220] of Law of Succession by Dal Point & Mackie, Second Edition which discuss the principle. The executor’s year is the period of a year from the death of the deceased. As a general guide, an executor or administrator is allowed the executor’s year to finalize the administration of the estate. The principle is not an absolute one but is based on what is reasonable in the circumstances.
    

CONSIDERATION

16. I do not think there is any dispute that an executor or administrator owes a duty to the beneficiaries under a will to file an inventory and account of the estate when the administration is completed.
    
17. What about Order 73(2) which states that the account must be filed within 12 months after grant of probate or administration? I view this time requirement to conflict with s.59 of the Act. The National Court Rules should only be concerned with practice and procedure of the Court. If Parliament considered that the duty to exhibit an inventory and account shall be performed within a prescribed time it would have said so in the legislation. There is no requirement by s.59 to file the inventory and account within 12 months after the grant of probate or administration. But neither does s.59 state that this duty kicks in upon completion of the administration. Again, if Parliament intended that to be the case, it would have said so in the legislation.
    
18. It may well be that Order 73(2) included the 12 months requirement with the principle of “executor’s year” in mind, but that would be mere speculation. What must be stressed is that the Rule cannot override a statutory provision.
    
19. In my opinion, s.59 contemplates situations or circumstances other than upon completion of the administration, when an executor or an administrator may be lawfully required to produce the inventory and account. That requirement could be the result of a court order. Where a beneficiary considers that an executor or administrator is not properly discharging his duty, the beneficiary is entitled to seek a court order to compel the executor or administrator to discharge that duty, including the duty to present an inventory and account of the estate of the deceased.
    
20. Thus, the plaintiff, as a beneficiary, is entitled to file this proceeding and this court has power to consider it. Whether the application should be granted is of course a totally different issue.
    

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O’Briens: Lawyers for the Applicant
Dentons: Lawyers for the Second Plaintiff