N4229

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WPA NO 17 OF 2010

IN THE ESTATE OF BASAH LAKATANI PALA, LATE OF MOUNT HAGEN, WESTERN HIGHLANDS PROVINCE, FINANCIAL CONTROLLER, DECEASED

Mount Hagen: Makail, J
2011: 18th & 21st February

PROBATE - Deceased estate - Deceased dying testate - Existence of will - Executors named in will - Application for probate - Appointment of executor - Requirements of grant - Proof of - Grant of - Wills Probate & Administration Act, Ch 291 - Sections 13, 14 & 38 - National Court Rules - Order 19, rules 1-5, 7-14 & 24.

Cases cited:

Paul Wagon, Public Curator of Papua New Guinea -v- Peter Pilembo (2008) N3487
Public Curator of Papua New Guinea -v- Rei Renou & Ors [1978] PNGLR 253

Counsel:
 
Mr M Tamutai, for applicant

EX-PARTE RULING
21st February, 2011

1. MAKAIL, J: This is an ex-parte application for grant of probate for the appointment of the applicant Lindah Lakatani as executrix of the estate of the late Basha Lakatani Pala pursuant to section 38 of the Wills Probate & Administration Act, Ch 291 and Order 19 of the National Court Rules. The applicant is one of the biological daughters of the deceased Basha Lakatani Pala. In support of the application, she relies on the following documents:

1.	Affidavit of executrix by the applicant sworn on 19th March 2010 and filed on 22nd March 2010 (Order 19, rule (Order 19, rule 24(2(b)(i)-(vii));

2.	Affidavit of Death Entry by Lyn Nimagole sworn on 18th March 2010 and filed on 22nd March 2010 (Order 19, rule 24(1)(a)); 

3.	Oath of office by applicant filed on 22nd March 2010 (Order 19, rule 24(7));

4.	Renunciation of Probate by Karo Pala sworn on 26th March 2010 and filed on 04th May 2010 (Order 19, rules 14 & 24(2));

5.	Affidavit of Publication and Search by Mathew Porami Tamutai sworn on 23rd April 2010 and filed on 04th May 2010 (Order 19, rules 10 & 24(1)(c)(i)&(ii); and

6.	Affidavit of Witness by Miriam Timbi sworn on 08th November 2010 and filed on 31st January 2011(Order 19, rule 24(6)).

2. The National Court's jurisdiction in probate matters is found in section 38 of the Wills Probate & Administration Act, Ch 291. The National Court is given wide powers to grant probate of a will and the procedures are provided exclusively under Order 19 of the National Court Rules: see Order 19, rules 1-5, 7-12 & 24. It is on this basis that the Court is being asked to exercise its powers in favour of the applicant.

3. In applications for grant of probate, there are requirements that applicants must satisfy before the Court may grant probate. These requirements are set out in Order 19, rules 10, 14 & 24 of the National Court Rules. Having perused these documents filed by the applicant, I am satisfied that the deceased died on 03rd January 2010: see affidavit of death and medical certificate of death by Dr Sodeng of Angau General Hospital dated 03rd January 2010 above. She died testate. Her will is annexed as "A" to the affidavit of the applicant (supra) and also annexure "A" to the affidavit of witness Miriam Timbi (supra). It was made on 31st June 2007. There is therefore a will in existence.

4. I have considered it and am satisfied that it is in order as it has the features of a will under sections 13 and 14 of the Wills Probate & Administration Act, Ch 291: see also discussions on definition and features of a will in Paul Wagon, Public Curator of Papua New Guinea -v- Peter Pilembo (2008) N3487 and Public Curator of Papua New Guinea -v- Rei Renou & Ors [1978] PNGLR 253.

5. There is no evidence of any subsequent will revoking the will. In the will, the deceased has appointed three persons to be joint executors and trustees of her estate. They are her husband Jerry Yimp, the applicant and her brother Karo Pala. Having considered these persons in the light of the evidence, I am not satisfied that the husband Jerry Yimp is eligible to be appointed as an executor because there is no evidence that he is married to the deceased by custom or under the Marriage Act. This is because the will specifically made reference to Jerry Yimp as the husband of the deceased. In the absence of proof of a marriage between them, I find Jerry Yimp incapable of being appointed one of the executors of the estate of the deceased.

6. As for Karo Pala, I am satisfied he is eligible to be appointed an executor of the estate however, he has renounced his appointment as executor of the estate: see his renunciation of probate above. That being the case, this leaves only the applicant. She is the eldest daughter of the deceased and is not a minor. There are no objections to the applicant being appointed executrix of the estate of the deceased following the publication of the notice in the Post Courier on 01st April 2010. Based on the will, I am satisfied the applicant is the only eligible person to be appointed executrix of the estate of the deceased.

7. At this stage, there is no evidence of creditors of the deceased but if there are, they can be dealt with by the executor once an executor is appointed. I am further satisfied the deceased left behind property in Papua New Guinea. They consist of real and personal property. They are monies held in bank accounts of Westpac bank, Bank South Pacific and ANZ bank, three properties, one in Lae and two in Mt Hagen, motor vehicles, household items and shares in the companies of Bank South Pacific, Credit Corporation and Marengo.

8. In the end, the applicant Linah Lakatani the executrix named in the will dated 31st June 2007 of Basah Lakatani Pala, late of Mount Hagen, Western Highlands Province, Papua New Guinea, Financial Controller, Deceased is granted probate of the will.

Judgment and orders accordingly.

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Tamutai Lawyers:	 Lawyers for Applicant