SC2737

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO 107 OF 2024

ROSELYN ARAU AS PRINCIPAL ADMINISTRATRIX IN THE LAST WILL OF LATE VINCENT AMBIAH DATED 29 DECEMBER 2022 
Appellant

V

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

WAIGANI: CANNINGS J, TOLIKEN J, COATES J
26, 28 MAY 2025 

WILLS, PROBATE & ADMINISTRATION – two wills by same testator – whether first will or second will was valid – decision of trial judge that first will valid, second will not validly executed and deemed invalid.

JUDGMENTS AND ORDERS – NATURAL JUSTICE – duty of trial judge to give reasons for decision – whether trial judge gave sufficient reasons for preferring evidence of witnesses of party agitating for validity of first will and rejecting evidence of witnesses of party agitating for validity of second will. 

At a trial in the National Court the primary issue was which of two conflicting wills of the same deceased person was the valid will. Numerous witnesses gave oral and affidavit evidence in support of one or the other opposing parties. The trial judge declared that the first will, executed on 13 August 2022, was the valid will, and that the second will was not validly executed and deemed invalid. His Honour granted probate to the executors and trustees named in the first will (the respondents). The appellant, who was the defendant in the National Court, appealed to the Supreme Court against the judgment of the National Court on four grounds, that the trial judge erred in law and fact by: (a) failing to make findings and give reasons for not being persuaded by the evidence provided by the appellant; (b) failing to find irregularities in execution of the first will; (c) failing to recognise that the deceased’s thumbprint on the second will, witnessed by a lawyer, was adequate compliance with the requirements for executing a valid will; and (d) misconstruing s 35 of the Wills, Probate and Administration Act in determining that the second will did not supersede the first will. 

Held:

(1)	It is incumbent on a court when giving final judgment in a case to give adequate reasons that explain how and why findings of fact and law have been made.

(2)	Here, the trial judge determined that the first will was validly executed in full compliance with the Wills, Probate and Administration Act and that it required no additional evidence to support its validity, but did not set out the reasons or grounds for making those findings.

(3)	His Honour stated that the second will required testimony that supported its validity or rejected its validity but did not set out that testimony or explain why he was not persuaded by the evidence that supported the validity of the second will.

(4)	His Honour stated that he was not persuaded that the testator’s intention was clearly established to support the validity of the second will, but did not explain why he was not persuaded.

(5)	Ground (a) of the appeal was upheld. This vitiated the decision of the National Court. It was unnecessary to address the other grounds of appeal. The appeal was allowed. The matter was remitted to the National Court for retrial. 

Cases cited
Amet v Yama [2010] 2 PNGLR 87
Coconut Products Ltd v Markham Farming Company Ltd (2018) SC1717
Kore v Lapa (2018) SC1699
Miatkiah v Arau (2024) N10974
Rage v Rageau (2020) SC1971
Re Fisherman’s Island [1979] PNGLR 202

Counsel
R Kebaya for the appellant
S Gor for the respondents

1.      BY THE COURT: Roselyn Arau appeals against the decision of 3 September 2024 of the National Court in a joint trial of two proceedings, WS 127 of 2023 and WPA 5 of 2023, in which she was a defendant. The primary issue at the trial was which of two conflicting wills of the same deceased person, the late Vincent Ambiah, was the valid will. 

2.     Numerous witnesses gave oral and affidavit evidence in support of one or the other opposing parties. The trial judge decided that the first will, executed on 13 August 2022, was the valid will, and that the second will, of 29 December 2022, was not validly executed and deemed invalid (Miatkiah v Arau (2024) N10974. His Honour granted probate to the executors and trustees named in the first will (the respondents).

3.    The appellant raises four grounds of appeal. She argues that the trial judge erred in law and fact by: 

(a) failing to make findings and give reasons for not being persuaded by the evidence provided by the appellant; 

(b) failing to find irregularities in execution of the first will; 

(c) failing to recognise that the deceased’s thumbprint on the second will, witnessed by a lawyer, was adequate compliance with the requirements for executing a valid will; and 

(d) misconstruing s 35 of the Wills, Probate and Administration Act in determining that the second will did not supersede the first will. 

GROUND (a): ALLEGED FAILURE TO MAKE FINDINGS AND GIVE REASONS 

4.     It is an accepted and important principle of the underlying law of Papua New Guinea that a judge or other judicial officer rendering a decision of the court must as an integral part of the duty to conduct proceedings in accordance with the principles of natural justice, give reasons for the decision. The duty is acute in a case in which there are contentious issues of fact and law. 

5.     Recent Supreme Court decisions that have applied these principles and determined the issue of whether the National Court gave sufficient reasons for decision include:

•	Kore v Lapa (2018) SC1699 (where the Supreme Court found that inadequate reasons were given in an oral judgment of the National Court);

•	Coconut Products Ltd v Markham Farming Company Ltd (2018) SC1717 (where the Supreme Court found that adequate reasons were given in a written judgment of the National Court); and 

•	Rage v Rageau (2020) SC1971 (where the Supreme Court found that inadequate reasons were given in an oral judgment of the National Court).

6.     Giving adequate reasons for the decision is essential to the discharge of the minimum requirement of natural justice which is under s 59 (principles of natural justice) of the Constitution, the duty to act fairly and, in principle, to be seen to act fairly. 

7.     We cite with approval dicta of Wilson J in the National Court case Re Fisherman’s Island [1979] PNGLR 202:

In any case in which there is conflicting oral evidence the judicial officer should state in his reasons for decision why he rejects the evidence (or part of the evidence) of one and why he accepts that of the other. Where there is evidence whether oral or otherwise, tending to prove one side of an issue and there is no evidence on the other side to contradict it, the judicial officer is bound to accept it unless that evidence is in itself so incredible and so unreasonable that no reasonable man could accept it. 

8.     There is no obligation to give written reasons or to render a formal written judgment. An extempore judgment or an oral judgment given some time after the conclusion of a trial is sufficient, subject to the proviso that the judgment given orally must adequately convey the reasons for the decision (Amet v  Yama [2010] 2 PNGLR 87).

9.     If no or inadequate reasons are given, it can be inferred that there are no good reasons for the decision, and this makes the decision susceptible to being quashed on appeal or review by a superior court.

10.     Reasons must be sufficient to enable a person aggrieved by the decision to prepare grounds of appeal or review to challenge the decision. 

11.     In the present case the complaint of the appellant is that there was a lot of oral testimony given for each side of the case as to the circumstances in which the deceased executed each of the two wills, including evidence from the lawyer who drafted the first will and the lawyer who drafted the second will. The evidence was conflicting but relevant to the critical issue of whether the second will was executed with the genuine intention of the testator.

12.     We agree that there was indeed a considerable amount of conflicting evidence before the National Court. The trial judge noted that there were 11 affidavits admitted into evidence for the respondents (the plaintiffs in the National Court) and 12 affidavits admitted into evidence for the appellant (the defendant in the National Court). Many of the deponents gave oral evidence and were subject to cross-examination. However, his Honour did not indicate any details of the evidence or attempt to summarise it in any way. He simply recorded the name of each deponent, the date on which the affidavit was sworn, the date it was filed and its exhibit number. 

13.    His Honour quoted ss 13 (execution of will) and 14 (validity of signature to will) of the Wills, Probate and Administration Act Chapter 291 and then stated that the respondents’ argument was that the second will, executed on 29 December 2022, two days before the deceased died, was invalid because it did not comply with ss 13 and 14.

14.     His Honour then quoted s 35 (defective and informal wills) of the Act. His Honour then at paragraphs 14 to 25 of his written judgment gave the following reasons for ordering that the first will was valid and that the second will was not validly executed and deemed to be invalid:

14	In Re James Allan Sannga [1983] PNGLR 142, 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).

15.     His Honour’s process of reasoning can be summarised as follows:

•	The first will was validly executed in full compliance with the Wills, Probate and Administration Act. It required no evidence to support its validity.

•	The second will required testimony by witnesses to either support its validity or reject the position that it has validity.

•	The evidence of the appellant’s witnesses was not sufficiently persuasive to clearly establish that the testator’s intention was to make the second will, so that it should be declared valid.

16.     We note that his Honour gave no reasons for finding that the first will was validly executed in full compliance with the Wills, Probate and Administration Act and that it required no evidence to support its validity. This was a critical finding on a question of law that was fundamental to the respondents’ case in the National Court. Reasons should have been provided to support that finding.

17.     His Honour did not say why or how or to what extent the evidence of the appellant’s witnesses was not persuasive. There was oral and affidavit evidence that the deceased had expressed the view to some of the witnesses that he did not clearly understand what the first will contained and he wanted to sign another will. That evidence, and the evidence of witnesses who were present when the deceased executed the second will with his thumbprint, if accepted, would seem to have been sufficient to find that the deceased’s intention was clearly expressed by the second will. Reasons should have been provided as to why his Honour did not accept that evidence. 

18.     This was a case in which there was an abundance of conflicting evidence. It was incumbent on the judge to summarise at least the gist of the conflicting evidence and, as emphasised by Wilson J in Re Fisherman’s Island, to explain why he was not persuaded by the evidence of the appellant’s witnesses and why he was persuaded by the evidence of the respondents’ witnesses.

CONCLUSION

19.     We find, with respect, that this was a case in which the learned trial judge failed to give adequate reasons for the orders that were made in favour of the respondents. We uphold ground (a) of the appeal. This vitiates the decision of the National Court. It is unnecessary to address the other grounds of appeal. The appeal will be allowed. We will order that the matter be remitted to the National Court for retrial. Costs will follow the event. 

ORDER 

(1)	The appeal is allowed.

(2)	The order of the National Court of 3 September 2024 is quashed.

(3)	The cases WS 127 of 2023 and WPA 5 of 2023 are remitted to the National Court for retrial.

(4)	The respondents shall pay the costs of the appeal to the appellant on a party-party basis, which shall, if not agreed, be taxed. 
__________________________________________________________________
Lawyers for the appellant:	Kebaya Lawyers 
Lawyers for the respondents: 	Gor Lawyers