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Public Curator of Papua New Guinea v Public Trustee of New Zealand [1976] PNGLR 427 (28 September 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 427 - Public Curator of Papua New Guinea v Public Trustee of New Zealand 

[1976] PNGLR 427

N60

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PUBLIC CURATOR OF PAPUA NEW GUINEA

V

PUBLIC TRUSTEE OF NEW ZEALAND

Waigani

Prentice DCJ

23 September 1976

28 September 1976

WILLS - Making of - Testamentary document intended as will - One witness only - Defects and informalities - Saving effect of s. 43[cdlxxxii]¹ of Wills Probate and Administration Act 1967 - Wide interpretation - Clear intention to make a will - Legislative intention to facilitate making of wills - Constitution s. 25 (3)[cdlxxxiii]², s. 109 (4)[cdlxxxiv]³ - National Goal No. 2.

The plaintiff sought proof in solemn form of an alleged testamentary document purporting to be the will of one Wills deceased dated 9th December, 1971, and a grant of administration with the will annexed; the alleged testamentary document was short, purported to revoke all former wills, appoint an Executor to administer the estate, provide for bequests and the disposal of his deceased body, and was signed by one witness only. It did not contain an attestation clause. In addition evidence was given by the witness, a clergyman, to the effect that the deceased brought a draft will to him requesting him to type it, that this having been done the document was signed, and that at the time the deceased appeared normal in all respects.

Held

(1)      The legislative intent and the effect of s. 43 of the Wills Probate and Administration Act, 1967 are to be taken to be that irregularities, namely, defects, informalities and statutory non-compliance comprehensively, shall not invalidate a will proved to be a last will and testament.

(2)      Such a wide intrepretation of s. 43 of the Wills Probate and Administration Act 1967 is justified by reference to s. 25(3) and s. 109(4) of the Constitution, and the National Goals and Directives, National Goal No. 2: The desire to make proper testamentary disposition of his property comes within the legitimate needs and aspirations of citizens. Equalization of access to the legal processes and services necessary to achieve these needs and aspirations, including semble the drafting and making of effective wills of which probate can be granted, is a declared aim. The geographic isolation, lack of easy, and the cost of travel facilities, the fewness of lawyers, all prevailing in Papua New Guinea, indicate an intention to provide the ability to make a valid will without rigid compliance with formalities, more widely available.

(3)      On the evidence it had been shown that the deceased “intended the will to be his last will and testament and that intention was clear”, within the meaning of s. 43 of the Wills Probate and Administration Act 1967.

(4)      Accordingly the document dated 9th December, 1971, should be admitted to probate as the last will and testament of the deceased, and a grant of administration with the will annexed should be made to the plaintiff.

Action

This was an action in which the plaintiff sought proof in solemn form of an alleged testamentary document dated 9th December, 1971, made by the deceased Wills, and a grant of administration of the estate with the will annexed.

Counsel

JA Griffin for the plaintiff

DA Boston for the defendant

Cur. adv. vult.

28 September 1976

PRENTICE DCJ:  The plaintiff seeks proof in solemn form of what is said to be the will of George John Wills of Samarai dated 9th December, 1971; and a grant of administration of the estate with the will annexed. The defendant, the Public Trustee of New Zealand, opposes the application, and in the event of its opposition being successful will propound a will dated August 1941 allegedly of the same person.

The alleged testamentary document is short. I set it out hereunder:

“SAMARAI

PAPUA, 9th December, 1971

LAST WILL AND TESTIMONY OF GEORGE JOHN WILLS OF SAMARAI TPNG

I GEORGE JOHN WILLS being of sound mind do hereby make the following WILL. This revokes all WILLS either held here in PAPUA or NEW ZEALAND.

I appoint R. G. WILLS of 88 LAKE ROAD NORTHCOTE N.Z. AS MY EXECATOR (sic) and beseech him to see that the following is administered.

DOMINION LIFE INSURANCE POLICY HAS BEEN ASSIGNED TO LITIAN WILLIAM OF TUBE TUBE VILLAGE in Eastern PAPUA for recognition of her help during the worst period of my recovery after my accident on the 29th Jan., 1971.

I ask that all other monies of INSURANCE POLICSES (sic) and any other money due to me be paid to Z.M. WILLS of 47 Portodella Rd., Dunedin, N.Z. but, that in the event of the aforesaid Z.M. WILLS predeceasing me that and monies be paid in equal proportion to Greyson Wills (address unknown) and Kristine Wills (now married but address unknown).

It is my wish that my body be made available to the UNIVERSITY OF PAPUA NEW GUINEA to assist in their medical research work.

DATED DAY OF DEC. 1971

G.J. WILLS

WITNESS

(Tasman Cope, Priest)”

It will be seen that the document does not comply with s. 18 (1) (b) and (c) of the Wills Probate and Administration Act No. 68 of 1967, in that the testator’s signature has not been made in the presence of two witnesses who have duly attested the same and subscribed the same in his presence.

In seeking to have the will propounded, Mr. Griffin relies upon s. 43 of the Act, which is in the same division of the Act as s. 18. This section is in the following terms:

“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 Ordinance, 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 reasons of any defect or want of formality, or of any failure to comply with the provisions of this Ordinance, 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.

(2)      Nothing in the last preceding subsection contained affects or shall be deemed to affect the operation of Section 24 of this Ordinance.

(3)      Subsection (1) of this section does not apply to or in relation to the will of a person who died before the commencement of this Ordinance.”

Mr. Boston, in an interesting and ingenious argument, submits that recourse may not in this case be had to s. 43. The section is not, he says, to be so construed as to in effect, repeal s. 18 of the Act. Making only such limited use as has traditionally been made of marginal notes in statutes, he suggests that those to s. 43 with their phrase “for certain reasons”, indicated that the section was intended to have a limited operation only. The section should be read restrictively, he contends, so as to save a will which fails in one element; as for example, when it has a defect, or when it wants a formality, or when it fails to comply in one respect with the Act or when it fails to comply with another law. It may not, his argument runs, be prayed in aid where there are a number of “irregularities” from more than one of the categories of “irregularities” set out in the section. This document, he says, has defects in the general sense, is wanting in formality, and does not comply with the Statute.

Mr. Boston submits that the following may be regarded as “defects” within the meaning of s. 43:

(a)      That a date appears at the top as in an ordinary document, whereas a Will is customarily dated at the bottom.

(b)      That the usual testimonium clause is omitted.

(c)      That the customary form of revocation of all former testamentary dispositions does not appear.

(d)      That the testator does not identify himself with particularity.

It is suggested that though s. 18 enacts that a form of attestation is not necessary, the lack of an attestation clause amounts in the document propounded to an informality.

The lack of a second witness, it is admitted, is a statutory defect coming within the category of failure to comply with s. 18 of the Act.

I find difficulty in concluding that the matters enumerated amount to “defects” within the meaning of the statute. Certainly the document is informal when compared to wills drawn by lawyers, but the lack of a formal attestation clause is by the Statute, expressly excused. If, however, one regards all the matters other than the lack of a witness as truly amounting to “defects” or “want of formality”, I do not think a proper construction of the Statute requires the conclusion urged by Mr. Boston.

Section 18 (1) of the 1967 Act is in terms identical, but for the words “subject to this Division”, with those in the preceding 1956 Statute. Sections 2, 3 and 4 of s. 18 are new, as is s. 43. 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 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 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)).

The Act No. 68 of 1967 has its present force and effect by virtue of Sch. 2.6 (2) of the Constitution of Papua New Guinea, which enacts that all pre-Independence laws are adopted as Acts of the Parliament (of Independent Papua New Guinea).

Section 109 (4) of the Constitution requires that:

“Each law made by the Parliament shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, ...”

Under National Goal No. 2, that calling for Equality and Participation, the Constitution enacts as a directive, the “equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfilment of his or her real needs and aspirations ...”

Section 25 of the Constitution directs that:

“25(3) Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way. ...” (underlining mine)

The desire to make proper testamentary disposition of his property comes within the legitimate needs and aspirations of citizens. Equalization of access to the legal processes and services necessary to achieve these needs and aspirations, including (I conceive) the drafting and making of effective wills of which probate can be granted by the Court is a declared aim. The legislators would have been fully seized of the difficulties put in the way of an intending willmaker by the geography, isolation, lack of easy and the cost of, travel facilities, the fewness of lawyers, prevailing in Papua New Guinea. They have intended I think, to provide that the ability to make a valid will without rigid compliance with formalities, should be more widely available.

For each and all the above reasons I consider a wide rather than a restricted interpretation of s. 43, to be called for.

I turn now to the question of whether it has been shown “that the testator intended the will to be his last will and testament and that intention is clear”. 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 document propounded is headed “Last Will and Testimony”. It refers to soundness of mind and states “do hereby make the following will”. The clause “This revokes all wills either held here in Papua or New Zealand” is clear indication of an intent to revoke other wills. It purports to appoint an “executor” who will (“administer”). It provides for bequests, and the disposal of his deceased body. It is witnessed and dated 9th December, 1971.

The witness to the document was Tasman Duncan Cope. It is significant that he was a clergyman at Samarai and was Mr. Will’s priest and confidante. He says the deceased came to his office with a draft will requesting him to type it. The witness did so. They both read it and corrected it. Rev. Cope is sure the deceased knew what he was signing — he appeared normal in actions and speech. He identifies the signatures on the document propounded.

I am satisfied that it has been shown that the testator intended the document propounded to be his last will and testament and that that intention is clear. Despite the lack of a second witness as provided for by s. 18 of the Act, I order that the document dated 9th December, 1971 filed in Court — annexed to the affidavit of Willem Frederik Koppel of 21st day of November, 1974 be admitted to probate as the last will and testament of George John Wills late of Samarai, retired company representative, deceased. I order that a grant of administration with the will annexed be made to the Public Curator of Papua New Guinea.

I order the costs of the parties to this suit be paid out of the estate.

I reserve liberty to apply.

Orders accordingly.

Solicitors for the plaintiff: White, Reitano and Young.

Solicitors for the defendant: Craig Kirke & Wright.

[cdlxxxiii]Infra p. 431.

[cdlxxxiv]Infra p. 431.