N10974
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CONSOLIDATED MATTERS OF WS No. 127 OF 2023 (IECMS) & WPA No. 5 OF 2023 (IECMS)

WS No. 127 OF 2023 (IECMS)

BETWEEN:
PAUL MIATKIAH AND WAYNE KASOU AS EXECUTORS AND TRUSTEES NAMED IN THE WILL DATED 13 AUGUST 2022 OF LATE VINCENT AMBIAH
Plaintiffs

AND:
ROSELYN ARAU AS PRINCIPAL ADMINISTRATRIX NAMED IN THE UNDATED WILL OF LATE VINCENT AMBIAH
Defendant

AND
WPA No. 5 OF 2023 (IECMS)

IN THE MATTER OF THE ESTATE OF VINCENT AMBIAH LATE OF LONDOLOVIT VILLAGE, LIHIR ISLAND, NEW IRELAND PROVINCE, PAPUA NEW GUINEA

BETWEEN
PAUL MIATKIAH
Plaintiff

AND:
WAYNE KASOU
Plaintiff

Waigani: Carey J
2023: 28th November
2024: 4th April, 8th July and 3rd September

WILLS PROBATE AND ADMINISTRATION – Person dies with a Will – Competing Wills – Fingerprint Signature – Questionable Circumstances.

Facts:

The Plaintiffs in the first proceeding filed a summons claiming probate of the First Will to be granted to them. The Defendant filed a Caveat claiming to be the Principal Administratrix in a subsequently dated will. In the second proceeding the Plaintiffs sought orders to be named as the Executors and Trustees of the First Will in order to be granted Probate of the Will.  

Held:

1.	The First Will is declared to be the valid Will of the Late Vincent Ambiah.

2.	The Second Will is not validly executed and deemed invalid.

3.	The Plaintiffs Paul Miatkiah and Wayne Kasou, the Executors and Trustees named in the First Will of the Deceased be granted Probate of the Will. 

4.	The Defendant shall pay the Plaintiffs’ costs of and incidental to this proceeding, to be taxed if not agreed.

5.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Cases Cited:

Papua New Guinean Cases
Re James Allan Sannga [1983] PNGLR 142

Overseas Cases Cited:
Kumar v Kumar [1985] FJSC 31; Probate Act 9 of 1981 [1st February 1985].

Legislation:
Wills, Probate and Administration Act (Chapter 291).

Counsel: 
Mr. Soa Gor, for the Plaintiffs
Mr. Robbie Kebaya and Mr. Joshua Talipan, for the Defendant

JUDGMENT
2nd September 2024

1.	CAREY J: This is the judgment in relation to the Estate of the Late Vincent Ambiah, in which there are two proceedings that have been consolidated. The proceedings are:

a.	WPA 5 of 2023 In the matter of the Estate of the Late Vincent Ambiah Late of Londolovit Village, Lihir Island, New Ireland Province, Papua New Guinea, Businessman; and
b.	WS 127 of 2023 Paul Miatkiah & Wayne Kasou as Executors & Trustees named in the Will dated 13 August 2022 of Late Vincent Ambiah v Roselyn Arau as Principal Administratix named in the Undated Will of Late Vincent Ambiah.

2.	 WPA 5 of 2023 was filed as a probate proceeding on 1st February 2023 by Paul Miatkiah and Wayne Kasou as Executors and Trustees (the Plaintiffs) in the Will dated 13 August 2022 (the First Will).

3.	A Caveat was filed on 13th February 2023 by Roselyn Arau (the Defendant) in which she claimed that she was named as the Principal Administratix in a Will executed on 29th December 2022 (the Second Will) by the Late Vincent Ambiah (the Deceased).

4.	WS 127 of 2023 was filed on 22nd March 2023 by Paul Miatkiah and Wayne Kasou as Executors and Trustees (the Plaintiffs) in the Will dated 29th December 2022 (the Second Will) by the Late Vincent Ambiah (the Deceased).

5.	The dispute between the Plaintiffs and Defendant are focused around the validity of the First Will and Second Will.

6.	It is for this Court to determine whether the First Will or the Second Will is valid. 

BACKGROUND

7.	The Plaintiffs and Defendant have filed various Affidavits which are set out in the following paragraphs.

8.	 The Plaintiffs’ evidence was submitted by Affidavits from persons indicated below into evidence after the deponents were cross examined on 28th November 2023 and 4th April 2024. They are as follows:

a.	Affidavit of Helen Miatkiah sworn on 19th May 2023 and filed on 23rd May 2023 [Exhibit A];
b.	Affidavit of Paul Miatkiah sworn on 19th May 2023 and filed on 23rd May 2023 [Exhibit B];
c.	Affidavit of Susan Ambiah sworn on 26th May 2023 and filed on 29th May 2023 [Exhibit C];
d.	Affidavit of Hannah Ambiah sworn on 26th May 2023 and filed on 29th May 2023 [Exhibit D];
e.	Affidavit of Judith Duncan sworn on 26th May 2023 and filed on 30th May 2023 [Exhibit E];
f.	Affidavit of Mark Lowap sworn on 15th May 2023 and filed on 22nd June 2023 [Exhibit F];
g.	Affidavit of Mark Lowap sworn on 23rd January 2023 and filed on 8th February 2023 in the First Proceeding [Exhibit G];
h.	Affidavit of Ekonia Peni sworn and filed on 22nd June 2023 [Exhibit H];
i.	Affidavit of Ekonia Peni sworn and filed on 8th February 2023 [Exhibit I];
j.	Affidavit of Melanie Pake sworn and filed on 26th May 2023 [Exhibit J]; and
k.	Affidavit of Wayne Kasou sworn and filed on 3rd June 2023 [Exhibit K].

9.	The Defendant’s evidence was submitted by Affidavits from persons indicated below into evidence after the deponents were cross-examined on 4th April 2024. They are as follows:

a.	Affidavit of Natasha Rainol sworn on 12th June 2023 and filed 3rd July 2023 [Exhibit L];
b.	Affidavit of Grace Asa Ambiah sworn on 29th June 2023 and filed on 3rd July 2023 [Exhibit M];
c.	Affidavit of Grace Asa Ambiah sworn on 12th June 2023 and filed on 3rd July 2023 [Exhibit N];
d.	Affidavit of Roselyn Arau sworn on 16th October 2023 and filed on 27th October 2023 [Exhibit O];
e.	Affidavit of Roselyn Arau sworn on 29th June 2023 and filed on the 3rd July 2023 [Exhibit P];
f.	Affidavit of Josephine Magara sworn on 28th  June 2023 and filed on 3rd July 2023 [Exhibit Q];
g.	Affidavit of Josephine Magara sworn on 16th October 2023 and filed on 27th of October 2023 [Exhibit R];
h.	Affidavit of Oliver Pinarau sworn on 28th  June 2023 and filed on 3rd July 2023 [Exhibit S];
i.	Affidavit of Josephine Magara sworn on 16th October 2023 and filed on 27th  of October 2023 [Exhibit T];
j.	Affidavit of Angela Takau sworn on 16th October 2023 and filed on 27th of October 2023 [Exhibit U];
k.	Affidavit of Charoh Pinarau sworn on 16th October 2023 and filed on 27th   October 2023 [Exhibit V]; and
l.	Affidavit of Jacob Takau sworn on 16th October 2023 and filed on 27th October 2023 [Exhibit W].

ISSUES
a)	Whether the Court should grant probate of the Second Will of the Estate of the Deceased.

b)	 Determine the validity of the First or Second Will.

DETERMINATION
10.	 The Wills, Probate and Administration Act (Chapter 291) in sections 13 and14 states:
“13 Execution of will.

(1) Subject to this Part, a will is not valid unless it is written and executed in the following manner:—
(a) subject to Subsection (3), it is signed at the foot or end by the testator or by some other person in his presence and by his direction; and
(b) subject to Subsection (3), the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(c) the witnesses attest and subscribe the will in the presence of the testator.
(2) A form of attestation is not necessary.
(3) Notwithstanding Subsection (1)(a) and (b), a will may be signed or acknowledged in the presence of, and may be attested and subscribed by, an authorized witness.
(4) A will—
(a) made by a person who by reason of infirmity of body or illiteracy or otherwise is unable to execute it without assistance; or
(b) signed by a person other than the testator,
is not valid unless there is contained in, or annexed to, the will a certificate by the witness or witnesses, or it is otherwise proved, that at the time of the making of the will—
(c) the provisions of the will were read to the testator by or in the presence and hearing of the witness or witnesses; and
(d) the testator acknowledged the will, as so read, to be his intended last will.
(5) A will made by a person in a language other than a language that he habitually uses is not valid unless there is in, or annexed to, the will a certificate by an authorized witness, or it is otherwise proved, that at the time of the making of the will—
(a) the provisions of the will were properly translated, or were apparently properly translated, into a language understood, or apparently understood, by the testator by or in the presence of the authorized witness; and
(b) the testator acknowledged the will, as so translated, to be his intended last will.

14 Validity of signature to will.
(1) So far only as regards the position of the signature of the testator or of the person signing for him under Section 13, a will is valid within the meaning of this Division if the signature is so placed at, after, following, under, beside or opposite the end of the will that it is apparent on the face of the will that the testator intended to give effect by his signature to the writing signed as his will.
(2) A will referred to in Subsection (1) is not affected by the circumstances that—
(a) the signature does not follow, or is not immediately after, the foot or end of the will; or
(b) a blank space intervenes between the concluding word of the will and the signature; or
(c) the signature is placed among the words of the testimonium clause, or of the clause of attestation, or follows, is after or is under the clause of attestation, with or without a blank space intervening, or follows, or is after, under or beside the names, or one of the names, of the subscribing witnesses; or
(d) the signature is on a side or page or other portion of the paper or papers containing the will on which no clause, paragraph or disposing part of the will is written above the signature; or
(e) there appears to be sufficient space on or at the bottom of the preceding side or page, or other portion, of the same paper on which the will is written to contain the signature.
(3) Subsection (2) does not restrict the generality of Subsection (1), but a signature under this Division is not operative to give effect to a disposition or direction that—
(a) is underneath or follows it; or
(b) is inserted after the signature is made.”

11.	 The Plaintiffs argue that the Second Will, executed on 29th December 2022 and two days before the passing of the deceased, is invalid because it does not comply with sections 13 and 14 of the Wills Probate and Administration Act (Chapter 291).

12.	This Court has jurisdiction to grant probate of the Will upon determination of the evidence to support its validity as section 38 of the Wills Probate and Administration Act (Chapter 291) indicates the jurisdiction of the Court to do so. 

13.	Section 35 of the Wills Probate and Administration Act (Chapter 291) states:

“35 Defective and informal wills.

(1) Notwithstanding anything in this Division or in any other law but subject to Subsections (3) and (4), a will, whenever made, is not invalid, and a gift, devise, bequest, appointment or thing in or under any such will is not invalid and does not fail, solely by reason of—
(a) any defect or want of formality; or
(b) any failure to comply with this Act or of any such law,
if it is proved that the testator intended the will to be his last will and that intention is clear.
(2) Subject to Subsection (3), a gift, devise, appointment or thing to which Subsection (1) applies shall be given effect to, and has effect, according to the intention of the testator so far as that intention is clear and can be given effect to.
(3) Subsection (1) does not affect the operation of Section 19.
(4) Subsection (1) does not apply to or in relation to the will of a person who died before the commencement date.”

14.	 In Re James Allan Sannga [1983] PNGLR142, the Supreme Court indicated that defects and irregularities does not invalidate the will where there is clear testamentary intention.

15.	In the matter before this Court the applicability of this case is limited as the issue for determination does not turn on the testamentary intention alone given that there was a First Will, which would have been validly executed and in force. 

16.	It is for the Court to determine whether the Second Will was validly executed and if so it would be the will for which probate should be granted. 

17.	The argument by the Defendant that the thumbprint by the testator does not vitiate the validity of the Will and in fact, once the testator executed the Will with a sound mind and understood the contents therein the will should be accepted, applies persuasive case law from Fiji. See Kumar v Kumar [1985] FJSC 31; Probate Act 9 of 1981 [1st February 1985].

18.	The Plaintiffs’ submission does not offer case law for support but hinges on the facts as supported by affidavit evidence in which the deponents were cross examined for the court to determine which will should be accepted as being valid. 

19.	However, there is significant evidence provided by witnesses throughout the trial that provides clarity with regard to the intention of the testator.

20.	Notwithstanding the evidence presented by way of the testimony of the witnesses, the First Will was validly executed in full compliance with the Wills Probate and Administration Act (Chapter 291). 

21.	On its own merit, the First Will required no additional evidence to support its validity. 

22.	On the other hand, the Second Will required testimony by witnesses who either support the position that it is valid or reject the position that it has validity. 

23.	Having read through the affidavits of the witnesses, and listened to their testimony in Court, I am not persuaded that the testator’s intention was clearly established to support the Defendant’s argument that the Second Will should be declared valid. 

24.	The Defendant was not present when the Second Will was discussed with Natasha Rainol nor was she present when the will was executed.

CONCLUSION
25.	The determination as to the validity of the Second Will did not meet the requirements of persuasive case law, and statute nor did the evidence presented satisfy my mind that it met the requirements of being a valid will per the Wills Probate and Administration Act (Chapter 291).

ORDERS
1.	The First Will is declared to be the valid Will of the Late Vincent Ambiah.

2.	The Second Will is not validly executed and deemed invalid.

3.	The Plaintiffs Paul Miatkiah and Wayne Kasou, the Executors and Trustees named in the First Will of the Deceased be granted Probate of the Will. 

4.	The Defendant shall pay the Plaintiffs’ costs of and incidental to this proceeding, to be taxed if not agreed.

5.	Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Ordered accordingly.

Gor Lawyers: Lawyers for the Plaintiffs
Kortal Lawyers & Associates Lawyers: Lawyers for the Defendants