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Public Curator of Papua New Guinea v Reinou, Reinou and Dagele [1978] PNGLR 253 (21 July 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 253 - Public Curator of Papua New Guinea v Rei Reinou, Harold Elijah Reinou and Namoka Dagele, also known as Namok Reinou 

[1978] PNGLR 253

N152

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PUBLIC CURATOR OF PAPUA NEW GUINEA

V

REI REINOU AND OTHERS

Waigani

Prentice CJ

3 July 1978

21 July 1978

WILLS - Making of - Testamentary document intended as will - Extensive handwritten alterations to typed executed will - Alterations unwitnessed - Defects and informalities - Saving effect of s. 43[cdlvii]1 of Wills Probate and Administration Act 1967 - Wide interpretation - Clear intention to make a will.

WILLS - Making of - Testamentary document intended as will - Clear intention to make a will - “If it be proved” - Proof constituted by document itself - Proof from outside document not necessary - Wills Probate and Administration Act 1967, s. 43[cdlviii]².

The plaintiff sought a declaration of the rights and entitlements arising from a document purporting to be a will, originally formally typed and executed as a will and dated 20th January, 1975 and which after extensive unwitnessed hand-written alterations and amendments was dated 1st November, 1975. The effect of the handwritten alterations and amendments was to revoke and redistribute the original dispositions.

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 have been intended clearly to be a last will and testament.

Public Curator of Papua New Guinea v. Public Trustee of New Zealand [1976] P.N.G.L.R. 427 followed and applied.

(2)      For s. 43 of the Wills Probate and Administration Act 1967 to operate, proof that a particular document was intended as a last will and testament may derive from the fact of execution of the particular document and its contents: it is not necessary for such proof to be forthcoming from outside the document itself.

(3)      The document as altered showed 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 Public Curator was entitled to apply for a grant of probate of the document originally dated 20th January, 1975, but subsequently by alteration, 1st November, 1975.

Application

This was an application pursuant to O. IV rr. 11 and 16 of the Rules of the National Court seeking a declaration as to rights and entitlements under a document purporting to be a will.

Counsel

R. H. B. Woods, for the plaintiff.

J C. McWalters, for the first defendant.

K. A. Wilson, for the second and third defendants.

Cur. adv. vult.

21 July 1978

PRENTICE CJ: The plaintiff by notice of motion dated 11th April, 1978, asks for a declaration of the rights and entitlements that arise from a document originally dated 20 January, 1975, but which, after alterations and amendments, bears date 1st November, 1975. Apparently the application is made pursuant to O. IV rr. 11 and 16 of the Rules of the National Court, and, in so far as the originating process is a notice of motion, upon the notion that “application” in O. LXII r. 1 includes an “action” contemplated by O. IV r. 16. I express some doubt as to whether the “action” contemplated by the latter rule should not have been by way of a petition under O. LXXI r. 1.

I annex a copy of the document in question to this my judgment. As originally typed and executed the will made a Gallic distribution of the estate of the testator into three parts; the named beneficiaries being his adopted son Rei Reinou, Namoka Reinou (apparently Rei’s wife) and Harold Elijah Reinou. The overwritten alterations, if effective as dispositions, provide for a division into halves, between Harold Elijah Reinou and Namoka Dagele (the “Namoka Reinou” it seems, of the original disposition).

On the hearing of the application I had the benefit of submissions on behalf of the Public Curator, of Rei Reinou, and of the other two beneficiaries Harold Elijah Reinou and Namoka Dagele.

It is undisputed that handwritten additions both by way of printing and signature, are in the hand of the testator. And it is agreed that the two signatures “H. Schofield”, and that “Harold Schofield”, are all in the testator’s hand. Apparently it cannot be stated which of the two signatures alongside the attestation clause was that affixed when the will was originally made and witnessed; but it is agreed that there was at that time only one signature of the testator in that space. It is clear that the document in the form it took on 20th July, 1975 was prepared in the office of, and witnessed by, employees of the Public Curator. The “alterations” of November 1975, appear to have been made without the assistance of legal advice.

The question posed, is in effect: is the will of the deceased the typed document, or that document as amended in handwriting. It was put, I think correctly, by counsel for the Public Curator, that the formality required by s. 29 of the Wills Probate and Administration Act 1967 is not forthcoming to give the amendments force and effect as a revocation of the original will. He submits however that s. 43 of the Act can be prayed in aid to render the original will as altered — a valid and effective will.

Counsel seeking to propound the altered document as an effective will have made reference to my decision in Public Curator of Papua New Guinea v. Public Trustee of New Zealand (N. 60)[cdlix]³. In the instant case the court is concerned with a document which as altered, though apparently re-executed by the testator, has not been witnessed at all. Whereas in the cited case, the formality lacking was that of a second witness, in this case there was none. Counsel opposing the propounding of the altered document forcibly reminds me that this testator was apparently aware of the need for proper formalities, and lived at Boroko in proximity to and access to legal assistance. He rightly argues that to read s. 43 as covering such a case, is to give the widest possible interpretation to this section and to weaken greatly the effect of s. 18 of the Act. I appreciate that this is so; but I remain unrepentant in viewing the Legislature’s intent to be that defects informalities and statutory non-compliance comprehensively, should not invalidate a will proved to have been intended clearly to be a last will and testament. I am prepared to accept that will-making has been brought by this Statute very much into line with the making of wills by soldiers in the Law of the United Kingdom.

Mr. Wilson has submitted nevertheless, that to allow of the operation of s. 43 upon the altered document, proof must be forthcoming ab extra (from outside the document itself); in the cited case for instance, the evidence of Rev. Cope as to the circumstances surrounding the execution of the will was available. This would require a rather narrow view of the phrase “if it be proved”, so as to exclude reliance solely upon the facts of execution of the particular document and its contents.

I consider such a view not to be called for, when one considers the general purpose of the section. Reliance may, in my opinion, be placed upon the contents of the document itself.

I proceed then to consider whether it has been shown (in this case by the contents of the document alone) “that the testator intended the will to be his last will and testament and that intention is clear”.

The document[cdlx]⁴ as altered still purports to be “the last will and testament of Harold Schofield” (it is so headed). It revokes “all former wills and testamentary dispositions”. It appoints an “executor and trustee of this my will”. It provides for payment of debts and expenses and for division of the remainder of the estate in a fashion different from that in the original typed version. It continues “Absolutely nothing to Rei Reinou”, (making plain an antipathy towards a previously intended devisee). It continues immediately above the admittedly added signature of the testator — “the above is irrevocable and is my last will now changed” (emphasis mine). Subtended is the declaration “I Harold Schofield on 1st Nov. 1975 do hereby change my will so that 1/2 share of all I possess goes to my grandson Harold Elijah Reinou and half share to Namoka Reinou nee Dagele, nothing will go to my adopted son Reinou as he his (sic) unfit this is final 1/11/75” — and the testator’s signature appears again.

I find some difficulty in imagining a clearer way, of an informal nature, in which Mr. Schofield could have illustrated that he had changed his intention regarding benefiting his son, and that he intended the altered document to operate as his last will and testament. I apprehend his intention to be clear in these regards, and that it can be given effect to — (s. 43 (i)).

I declare:

(1)      That it is open to the Public Curator to apply for Grant of Probate of the document originally dated 20th January, 1975 but subsequently, by alteration, the first November 1975;

(2)      That Rei Reinou is not entitled as a beneficiary under the document;

(3)      That the estate of Harold Schofield is to be distributed:

(a)      as to one half share, to Harold Elijah Reinou upon his attaining the age of 16 years;

(b)      as to one half share, to Namoka Dagele of Ginigolo.

I order that costs of all parties to this application be paid from the estate of the testator.

 Will

Orders accordingly.

Solicitors for the plaintiff: McCubbery Train Love & Co.

Solicitors for the first defendant: M. Kapi, Public Solicitor.

Solicitors for the second and third defendants: Public Solicitor.

[cdlvii]Section 43 of the Wills Probate and Administration Act 1967 provides:

“(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.”

[cdlviii](1904) 23 N.Z.L.R. 378.

[cdlix][1976] P.N.G.L.R. 427.

[cdlx]ANNEXURE see p. 257.