In the estate of Ronald Irving Dickson [2021] PGNC 344; N9187 (11 May 2021)

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IN THE ESTATE OF RONALD IRVING DICKSON, LATE OF 13 BYRON TERRACE, CAIRNS, NORTH QUEENSLAND 4870, BUSINESSMAN

WILLS, PROBATE & ADMINISTRATION -- 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 1,13, 14 & 38 –
National Court Rules - Order 19, rules- Will is challenged for lack of mental capacity to execute - whether there is a valid "will" - definition of and features of a "will" discussed - onus on party to disprove existence of valid "will" - - sections 1, 10,13,14, and 38- Wills, Probate & Administration Act Ch 291 - - National Court Rules - Order 19, rules 1-5 & 7-11.

2. The application for Probate is for the Will of Ronald Irving Dickson, late of 13 Byron Terrace, Cairns.

3. The Applicant is Finley Matheson of Allotment 14 Section 80, Waratah Club, Morobe Show group, Church street, Lae, Morobe Province.

4. The proceedings have no parties. However, Bathleen Dickson, the wife of late Ronald Irving Dickson has filed a Summons objecting to the grant of Probate, thus I refer to her as “Respondent” for convenience.

6. The Applicant filed proceedings for the grant of Probate of the Will of late Ronald Irving Dickson under section 38 of the Wills Probate and Administration Act 291.

7. The Respondent, is contesting the validity of the Will for the following reasons:

8. The Applicant raised a preliminary issue that the Respondent’s Summons objecting to the grant of Probate is premature and be dismissed for abuse of the process.

10. The relevant law governing Wills and Probate is the Wills Probate and Administration Act. Section 38 of the Wills, Probate and Administrative Act gives power to the National Court to grant probate, and letters of Administration. The relevant rule under the National Court Rules is Order 19, Rules 2 and 38 of the National Court Rules.

11. In the Estate of Basah Lakatani Pala (2011) PNGNC 17, N4229, Makail J said at paragraph 2 of his Judgment:

“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 “

12. The hearing was conducted in this manner. Both parties agreed to rely on their respective affidavits which were tendered into evidence by consent and without cross-examination.

13. The Applicant has filed and relies on the following documents and affidavits in support of the application:

14. The Respondent has filed and relies on the following affidavits and documents in support of the Summons for Revocation:

Item No.	Exhibit No.	Affidavit By	Contents
1.	Exhibit “P1”	Finlay Matheson (Affidavit of Executor)	He made this affidavit in his capacity as executor by setting out his residential address and annexing a copy of the Will. He sets out the requirements such as his appointment as executor and attestation of the Will by Mr. and Mrs Bray and that the deceased understood the document the last Will and Testament of Ronald Irving Dickson. The copy of the Will as Annexure “FMI” is not in that Affidavit as it may have been taken out when the Respondents were obtaining copies from Court File. The absence of the Will can be supplemented in the other documents.
2.	Exhibit “P2”	Finlay Matheson (Oath of Office)	He said he will well and truly administer the Estate of the deceased according to law.
3.	Exhibit “P3”	Finlay Matheson (Affidavit of Publication)	He attested to the publication in the Post-Courier of the intended Probate application.
4.	Exhibit “P4”	Finlay Matheson (Affidavit of Search)	Deposing to his search in the national Court Registry on 29 November 2017 confirming that there was no other Will of the deceased deposited in the National Court Registry and confirmation of other documents such as Caveat and Summons for Revocation being filed.
5.	Exhibit “P5”	John Bedford Bray	He says he was the witness to Mr Dickson’s Will as he had known him for a significant period of time for more than fourteen (14) years as his lawyer and friend in Lae. He visited Mr Dickson at his family home in Cairns on 26 July 2016 and he did not notice any difference in his mental ability. He was alert and conversed well and he did not see Ron to be infirm or lacking in mental capacity. He discussed the contents of the Will with Mr Dickson on that day (26 July 2011) to ensure that he understood his final testament and he was satisfied and agreed with the distribution of his estate. Mr. Dickson understood the contents of the Will and signed without any duress by himself or his wife who witnessed the signing.
6.	Exhibit “P6”	John Bedford Bray (Affidavit of Death)	He confirms that Mr Dickson passed away at Cairns Hinterland Hospital on 13 July 2017 and that he became aware of his death in or about August 2017.
7.	Exhibit “P7”	John Bedford Bray	He explained and made rebuttals to Affidavits of Bathleen Dickson sworn 24 November 2017 and Kylieanne Lisa Dickson sworn 25 November 2017.
8.	Exhibit “P8”	Kenneth Mark Hayman	He is late Dickson’s son in law from his Australian wife. He says he is married to Dickson’s daughter, Linda Irving Dickson and that they have two (2) children together. He had an opportunity to meet with late Dickson on five (5) occasions at which they discussed family matters such as his regrets of not spending more time with his daughter Linda during her childhood years at her boarding school and her adolescent years in Australia. Mr Dickson sometimes moved to tears when expressing his feelings. Mr Dickson expressed his intention upon his death how his estate could be distributed. That is, his house at Cairns will be left to his wife Bathleen and the remainder of his estate to be liquidated and distributed equally between Bathleen, Tracey, Kylie and Linda. He specially indicated that Young would be excluded for some things he had done that made him very upset. He appointed someone in Papua New Guinea to be his Executor.
9.	Exhibit “P10”	Linda Irving Hayman	She is late Dickson’s daughter from his Australian wife. She always maintained contact with her father and her stepbrother and sisters. Mr Dickson wanted to buy a home for his wife, Bathleen Dickson at cairns which he did purchase at 13 Byron Terrace, Redlynch. Her father always provided for her stepsister Tracey Dickson and her family and other siblings. She discussed the death of her father and the reasons why she did not attend the funeral.
10.	Exhibit “P10”	Finlay
11.	Exhibit “P11”	Goiye Gileng	Talks about the interim order dated 26 June 2019 supporting Public curator to administer part of Probate and continuous involvement by widow.

Item No.	Exhibit No.	Affidavit By	Contents
1.	Exhibit “R1”	Bathleen Dickson	She says it is impossible to leave out late Dickson’s biological son, Young Irving Dickson out of the Will. Late Dickson was of unsound mind as he was undergoing medical treatment for prostate cancer operation in June 2015 at Matters Hospital in Brisbane and returned to Cairns in early July 2015. Mr Bray approached Mr Dickson at his home at Cairns on 25 July 2015 at their family home, 13 Byron Terrace, Redlynch, Cairns, Australia and obtained execution of the Will. His daughter Kylieanne was present on that day and became suspicious. She says she and her children were fearful that Mr Dickson may have signed a blank Will on 25 July 2015. Mr Dickson always maintained that when he died, his estate will be equally distributed by herself and the children and grandchildren. Mr Bray and Mr Finlay Matheson have unreasonable outstanding claims that they wish to settle from the estate. Mr Bray instructed late Mr Dickson not to change contents of the Will and to also keep away from their son, Young. After reading the Will, she asked her late husband if he had known that he excluded their son, Young from his Will and he was surprised and angry as he always wished for her and the children to equal shares in his estate if anything happened to him.
2.	Exhibit “R2”	Bathleen Dickson	Affidavit is the same as that of Exhibit “R1”
3.	Exhibit “R3”	Mary Napun	She testified as to being a witness to the previous Will signed in August 2013. She said Mr. Bray went to Mr Dickson’s office in August 2013 and asked her to sign a four (4) page document without telling her what the contents of the documents were. She did not know what she signed or witnessed. It was only in March 2018 that she realised that the document she signed was late Dickson’s last Will and codicil.
4.	Exhibit “R4”	Kylieanne Dickson	She was together with her father, late Dickson at their family home in Cairns on 25 July 2015 when the Brays went to their house uninvited. She was present in the house on 25 and 26 July 2015. There were no discussions of Will or Power of Attorney by Mr Bray. If there was any, she is one of the beneficiaries and she ought to have known but that was not the case. She was confident that the Will was done up by the Brays and manipulated the Will and got her dad only to sign.
5.	Exhibit “R5”	Janet Nawihim Bishop	She explains the management of a trust account set up by her late defector husband, late Ross Lawrence Bishop. She has a daughter from late Bishop. Upon passing he left a Will and appointed Mr Bray and late Dickson as his executors. She tells a story of alleged mismanagement by Mr Bray.
6.	Exhibit “R6”	Selwyn Noel Leslie Johnson	He is a Justice of Peace operating out of Queensland. On or about Friday, 19 May 2017, he attended at Cairns Hospital and saw Mr Dickson’s medical physician on duty to process his Enduring Power of Attorney. However, he was informed that Mr. Dickson was in pain management relief prescribed by his medical team which had adversely impacted on his testamentary capacity. He then advised Mr and Mrs Dickson that he will visit them upon discharge from hospital. On Friday, 02 June 2017, he attended at the late Dickson’s family at Cairns and administered his Enduring Power of Attorney and that he was satisfied with his testamentary capacity and understood the ramification of the changes and that the Enduring Power of Attorney would terminate upon his death when his Will would then take effect. Mr Dickson calmly and clearly advised him that he was in process of cancelling his previous Will with a new Will to include his wife (Bathleen) and his daughter (Kylieanne) to be his sole Executors.
7.	Exhibit “R7”	Selwyn Noel Leslie Johnson	The same statement as about in “R6” except for inclusion of a copy of the Enduring Power of Attorney.
8.	Exhibit “R8”	Bathleen Dickson	The affidavit contains allegations against the applicant, John Bray and others that is not relevant.

17. Counsel for parties made extensive submissions in respect of their respective clients.

19. In Response, Mr Sengi, counsel for the Respondent, in opposing the grant of Probate submitted the following:

Preliminary Issue: Whether an Application for Revocation of Grant can be made before the Grant of Probate?

20. I will rule on the preliminary issue raised by the Applicant. The Applicant filed a Summons for grant of Probate on 30^th October 2017. The Respondent filed a Summons for revocation of grant on 28^th November 2017 in the same proceedings. An application for revocation of grant is provided for under Order 19 Division 7 of the National Court Rules. The relevant rules are rules 37-42 which read:

Where proceedings have been commenced for revocation of a grant the Court may on the application of the Plaintiff, or of its own motion, order the executor or administrator to deposit the grant in the Registry.

In an urgent case the Court may, on the application of a person who intends to commence proceedings for revocation of a grant, order the executor or administrator to deposit the grant in the Registry to the same extend as if the applicant had commenced the proceedings and the application were made in the proceedings.

Proceedings for revocation of a grant shall, where there is no defendant, be commenced by summons in Form 87.

Proceedings for revocation of a grant shall, where there is a defendant, be commenced by a writ of summons.

21. Clearly, an application for revocation of grant can be made only after the Probate of Will is granted. In the present case, the application for grant is pending before the Court, and has not yet been granted. In the circumstances, I agree with submissions of Mr Gileng that the Summons for revocation is premature and is an abuse of the process.

Whether the Will Dated 25^th July 2015 is the Final Will and Testament of Late Ronald Dickson

22. I now turn to the substantive matter. The First issue is whether, the Will dated 26^th July 2015 is the final Will and Testament of the late Ronald Irving Dickson, deceased.

23. Under the Interpretation clause, section 1 of the Wills, Probate and Administration Act, a Will includes:

(c) an appointment by will or by writing in the nature of a will in exercise of a power; and

(e) a testament or devise of the custody and tuition of a child; and
(f) any other testamentary disposition.

24. In the present case, the deceased, late Ronald Irving Dickson, signed a Will on 26^th July 2015, at his home, 13 Byron Terrace, Redlynch, Cairns, Australia. It was witnessed and attested to by his lawyer, John Bray and his wife, Mrs Magdalene. Mr Bray was the lawyer who prepared the previous Will and Codicil in August 2013 which was witnessed by one Mary Napum. In the latest Will, Mr Dickson appointed the Applicant, Mr Finlay Matheson as Executor and Mr Goiye Gileng as the alternative executor. All his family members were made beneficiaries except for his son, Young Dickson who was expressly excluded from benefit sharing of the estate of the deceased.

25. The application for Grant is now opposed by Bathleen Dickson. The Respondent challenged the application of grant and the validity of the Will on the following grounds:

26. I have read all documents, the evidence and heard submissions from counsel. Here is my ruling.

27. The first issue is whether the Will signed on 26^th July 2015 is the true last Will and Testament of late Ronald Dickson. Is the Will valid and effective?

28. Section 13 of the Wills, Probate and Administration Act sets out the minimum requirements of a valid Will. Section 13 reads:

(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;

(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;

(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.

(a) made by a person who by reason of infirmity of body or illiteracy or otherwise is unable to execute it without assistance; or

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.”
29. His Honour, Justice Makail discussed the application of section 13 of the WPA Act, in the case Paul Wagun -v- Peter Pilembo (2008) N3487. At paragraphs 34 – 38 of his judgment, His Honour said:

“34. From what I have discussed above, section 13 presents three types of situations where an executed "will" is valid. The first is in a situation which section 13(1)-(3) describes and the second one is described in section 13(4)(a)-(d). The third situation is where section 13(5)(a)-(b) describes.

38. I accept that the "will" in the Statutory Declaration is in writing thus, it complies with the first requirement of a "will" and that is it must be in writing, but notwithstanding that, the second and foremost requirement is that it must be signed by the deceased. Here, I find that the deceased signed it but even still, I find that it is lacking or defective because it does not say anywhere in it that it is intended to be the last "will" of the deceased or his last "will".

30. In my view, Section 13(1)-(3) applies to the present case. The Will is in writing in the English Language. The deceased was literate and knowledgeable in the English language. He knew or ought to have known and appreciated the Will before he signed same. It was executed by the deceased, and there is no evidence that he did not sign. It contains his signature at the second page which is the end of the Will. 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. The signature is valid for all purposes as required under section 14 of the Wills, Probate and Administration Act. There is no evidence that his signature was forged.

31. The Will is challenged on the basis that, the deceased signed a blank document, and Mr Bray filled in the blanks. However, there is no evidence that the contents were not written or instructed by the deceased. The Respondent submitted that the deceased was frail and was not in a proper frame of mind when he signed the Will. Mrs Dickson deposed, the contents of the Will did not contain the instructions and intentions of her late husband. She said, her late husband wanted to change the Will and was in the process of doing same when he passed away. I am not convinced that the Will is invalidated in any way for reasons advanced by Mrs Dickson. Firstly, there is no medical evidence showing that the deceased was not in a proper frame of mind or of unsound mind when he signed the Will. Secondly, the deceased had ample time and opportunity to change the Will. The deceased signed the Will on 26^th July 2015. He passed away on 13^th July 2017. The deceased had two years during which time he could have changed his Will which he did not.

32. The codicil dated 12^th August 2013 was challenged on the basis that there was no proper attestation by witnesses. It was submitted that Mary Napum who signed as a witness did not know the contents of the codicil when she signed. I find, there is no legal requirement for a witness to know the contents of the codicil. She is only required to witness the signing by the deceased under by sections 13 and 14 of the WPA Act.

33. The Respondent challenged the Will on the basis that the deceased did not freely sign the Will. He was forced or coerced into signing the Will, against his true intentions. The evidence to support their allegations came from Mrs Bathleen Dickson and her daughter Kylieanne Dickson. The evidence is refuted by John Bray. None of the witnesses were cross-examined. I do not find any aspect of the evidence or circumstance that suggest that late Dickson did not freely exercise his discretion to sign the Will. If he was forced or coerced into signing the Will, late Dickson had both the opportunity, time, and people around him to change the Will prior to his demise.

34. The deceased’s son, Young Dickson was expressly excluded from a share of the estate. The Respondent argues that the exclusion of his son, Young Dickson, from a share of the financial value of the estate is not possible and not in order. It is most unusual for late Dickson to exclude his son from being a beneficiary. I ask, what is the reason for this. The Respondent submits that senior Dickson was not in a proper frame of mind when he signed the Will, and he was coerced to exclude Young Dickson from a monetary share in the Will.

35. On the other hand, there is evidence from Finlay Matheson, John Bray, and Kenneth Mark Haymen, who deposed that, it was late Dickson’s own intention to exclude Young Dickson. The three men have had conversations with late Dickson at different times. Late Dickson disclosed to them that Young Dickson was excluded because of his misbehaviour and disrespect for his father, late Dickson. From the evidence, I find, apart from the immediate family members, John Bray and Finlay Matteson are long-time friends of the late Dickson and would have known the kind of relationship the Senior Dickson had with his son Young Dickson.

36. Whilst it seems unusual for a natural father to exclude his only son from benefiting from his estate and inheritance, it is not beyond the realm of possibility for such a decision. It is not right to speculate on what went on in the mind of late Dickson at the time he signed the Will or temper with his decision. The Court shall therefore give effect to the intention of late Dickson which is expressed and apparent in his last Will and Testament. Again, if it is not the intention of late Dickson to exclude his only son from the financial share of his estate, he would have changed his Will or done a codicil to the Will to include his son. As I said earlier, late Dickson had both the time and opportunity to do that.

37. The final issue for consideration is whether the Applicant, Finlay Matheson is a fit and proper person to be appointed Executor of the Will. The evidence shows Finlay Matheson is a business associate and long-time friend of late Dickson. During his stay in Lae, they met regularly, almost daily for tea. The evidence shows, late Dickson is said to owe Finlay Matteson substantial amount of money. In an acknowledgement of Debt, late Dickson is said to owe K1,000,000.00 to Finlay Matheson and another K1,000,000.00 to John Bray. I note, the Respondent is challenging the acknowledgement of debt. The Respondent is alleging that Finlay Matteson is therefore not a neutral person who will truly and fairly administer the estate of the deceased. He and John Bray are friends, and they have immediate conflict of interest in so far as distribution and settlement of the debts of the Estate is concerned.

38. Mrs Dickson and Kylieanne Dickson have deposed that late Dickson had at times expressed his desire to change the Will. He made moves to change and do a new Will. There is some evidence in support of this argument. I note from the evidence of Selwyin Johnson that on 2^nd June 2017, Mr Dickson executed an Enduring Power of Attorney where he appointed Michael Chung Fatt, Bathleen Dickson and Kylieanne Dickson as his Attorneys. Mr Johnson deposes further that Mr Dickson told him, he was in the process of cancelling his previous Will with signing of a new Will to include his wife Bathleen and daughter Kylieanne as his sole Executors. However, this did not materialise. Again, Mr Dickson had both the time, opportunity, and resources to change the Will. For whatever reasons, he did not do that.

39. Be that as it may, in my view, the Respondent’s fears are appears to be genuine, and real. Both Finlay Matheson and John Bray are close friends. They are said to be creditors of the estate of late Dickson. Whilst the Respondent disputes the debt late Dickson is alleged to owe the two men, he has signed an acknowledgement of debt. In terms of prioritising debts and expenses and the distribution of the estate, it is open to argument, that the Executor is likely to pay himself and John Bray from the estate unproven debts allegedly owed to them over other creditors and beneficiaries.

40. Should the Court then declare Finlay Matteson not a fit and proper person to be Executor of the Estate of late Ronald Irving Dickson. There is no provision under the Wills, Probate and Administration Act or the National Court Rules to disturb or revoke the appointment of an Executor before the grant of Probate. The only procedure available is under Order 19 Division 7 of the National Court Rules where a grant can be legitimately challenged. As I have found in the beginning of the judgment, it is premature for the Court to decide on this issue before the grant of Probate.

41. For these reasons, I am not inclined to consider this issue at this stage. However, in fairness to the Respondent, I am prepared to make necessary orders giving liberty to the Respondent to consider her options, under Order 19 Rule 38 of the National Court Rules. That is to allow for a reasonable time to issue a Summons challenging the appointment of Finlay Matteson as Executor, which includes Goiye Gileng as alternative Executor. If the Respondent desires, she can then issue a fresh Writ of Summons, or a Summons challenging the grant.

42. In conclusion, I find, the Respondent’s application, challenging the grant of probate is premature and abuse of the process. Secondly, I find from evidence given, late Ronald Dickson, did sign and execute a Will on 26^th July 2015 at 13 Byron Terrace, Redlynch, Cairns, Australia, witnessed by John Bray and Magdalene Bray. Although, Late Dickson expressed his intention to change his will, it did not materialise. In accordance with the Will, of late Dickson, Finlay Matteson be granted Probate of the Will of late Ronald Dickson executed 26^th July 2015, and him being Executor of the Will, and estate of the deceased.

43. Counsel for the Applicant submitted that cost of these proceedings be paid from the Estate. I note the parties have strenuously contested the application. It has become necessary for lawyers to be engaged by both parties. In my view, it is just to make specific orders for cost of both lawyers to be paid from the estate, as a matter of priority.

_______________________________________________________________
Gileng & Co. Lawyers: Lawyers for the Applicant
Simon S. Sengi & Associate Lawyers: Lawyers for the Respondent

National Court of Papua New Guinea

In the estate of Ronald Irving Dickson [2021] PGNC 344; N9187 (11 May 2021)