Nari v Public Trustee [2023] PGNC 261; N10421 (28 July 2023)

N10421

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WPA NO. 52 OF 2016

IN THE ESTATE of PAUL NARI, late of Hohola,
National Capital District, deceased

AND
IN THE MATTER OF CONTESTED APPLICATIONS FOR LETTERS OF ADMINISTRATION

BETWEEN
GRACE PAINALE NARI
Plaintiff/Applicant

AND:
PUBLIC TRUSTEE
Defendant/Respondent

Waigani: Shepherd J
2023: 6^th & 28^th July

WILLS, PROBATE & ADMINISTRATION – deceased estate – deceased dying intestate - deceased said to have had several wives by customary marriage – application by a widow claiming to be the only legal wife seeking letters of administration – Wills, Probate and Administration Act Chapter 291, s.38 - cross-claim by Public Trustee for grant of letters of administration – National Court Rules, Order 19 r.43 – terminology used in Court process for grant of letters of administration – four classes of persons or entities who can apply for letters of administration - spouse and next of kin; Public Trustee; creditor of deceased; trustee company - Rules of Intestacy - Wills, Probate and Administration Act, ss 81 to 84 – meaning of “next of kin” – includes illegitimate children and stepchildren of deceased – surviving wives of deceased husband by customary marriage take equal share of one-third of net intestate estate where there are surviving children or equal share of one-half of net intestate estate where there are no surviving children – law of intestacy has system of priorities as to those persons or entities who are entitled to apply for letters of administration – discussion of ranking of priorities where conflict of interest arises – circumstances in which Public Trustee can apply for letters of administration – Public Trustee Act, s.10 – discussion of notice provisions in Public Trustee Act, s.15 – Court-appointment of administrator of intestate estate – criteria to be met – fitness and capability – Wills, Probate and Administration Act, s.65 – persons aggrieved by decisions of Public Trustee – grievance procedure – persons aggrieved can apply to National Court for relief – Wills, Probate and Administration Act, s.34 – application of plaintiff/applicant for grant of letters of administration refused due to conflict of interest situation - cross-claim of Public Trustee for letters of administration granted subject to conditions to allow persons potentially aggrieved by pending decisions of Public Trustee to apply to Court for relief.

LEGISLATION – Public Curator Act Chapter 81 – Public Curator (Amendment) Act 2020 – term “Public Curator” replaced with term “Public Trustee” – Public Curator Act now more properly referred to as Public Trustee Act Chapter 81 (Consolidated to 2020).

Cases Cited:
Angui v Wagun (2011) N4194
Costello v Controller of Civil Aviation [1977] PNGLR 229
Lang v Wagun (2008) N3592
Lang v Wagun (2009) N3993
Re Application by Godwin Haumu for Admission as a Lawyer (2001) N2094
Re Johns [1971] PNGLR 110
Re John Sifter [1975] PNGLR 435
Re Estate of Paul Nari (2023) N10096
Re Yala Sem Yatu (2017) N7042
Wagun v Pilembo (2008) N3487

Legislation:

Constitution: s.155(4)
District Courts Act Chapter 40: s.22A
Lawyers Act 1996: s.25
Matrimonial Causes Act Chapter 282: s.43(2)
National Court Rules: Order 19 Rules 8(1), 25(9), 31, 32, 33, 43; Schedule 1 Forms 70 & 79
Public Trustee Act Chapter 81 (consolidated to 2020): s.10(1); s.15(1), (3), (4), (5), (8); s.34
Public Curator (Amendment) Act 2020: s.2
Trustee Companies Act Chapter 288: s.7
Wills, Probate and Administration Act Chapter 291: ss.1,38, 65, 66, 81(1), (2), 84(1), (2)

Counsel

Mr Herbert B. Wally, for Grace Painale Nari as Plaintiff/Applicant
Acting Public Trustee Mr Jacob Popuna, for the Public Trustee as Defendant/Cross-Applicant

DECISION

28^th July 2023

1. SHEPHERD J: This is a decision to determine which of two competing applicants should be granted administration of an intestate estate. The applicant first in time in these contentious proceedings is the second wife of the deceased. Her application is opposed by the Acting Public Trustee, who seeks grant of administration on the ground that the Office of the Public Trustee is in a more neutral position to administer the estate of the deceased for the benefit of all of those persons who are entitled to share in the distribution of the estate, not just the second wife and her family.

Preliminary - 2020 Amendment to Public Curator Act – now known as Public Trustee Act

2. The Office of the Public Trustee is a body corporate with perpetual succession established by s.2(2) of the Public Curator Act Chapter 81. That Act was amended by the Public Curator (Amendment) Act 2020 (Act No. 13 of 2020) which came into operation on certification on 14 August 2020. Section 2 of the Amending Act provides that the term “Public Curator” in the principal Act is replaced with the term “Public Trustee” and that reference to the “Public Curator” in any other law must be read as a reference to the “Public Trustee”. The title of the Public Curator Act should therefore now be properly be read as the Public Trustee Act Chapter 81 (consolidated to 2020). To avoid confusion and unnecessary repetition in this decision, references herein to the Office of the Public Trustee and to the Public Trustee Act are deemed to also include reference to the Office of the former Public Curator and the pre-2000 amendment of the Public Curator Act respectively, unless the context indicates otherwise.
3. Mr Popuna is the current Acting Public Trustee appointed to head the Office of the Public Trustee under the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. When referring to the Office of the Public Trustee in this decision, it has been convenient to refer to that Office as being that of the Public Trustee. The two terms can be read in this decision as if they were interchangeable, although it must be borne in mind that the Office of the Public Trustee, being a body corporate, is the actual defendant/applicant in these proceedings and is distinct from Mr Popuna in his ex officio capacity.

BACKGROUND

4. The late Paul Nari (the deceased) was aged 60 years and self-employed when he died on 3 February 2016 outside his home at Hohola, National Capital District (NCD). He was born at Paindaku Village, Laiagam District, Enga Province. He died intestate as he did not leave a will.
5. The second wife of the deceased is Grace Painale Nari (Grace), who was born on 24 April 1960 and is presently aged 63 years. Grace comes from Yamondi Village, Laiagam District, Enga Province. She says that she and the deceased were married according to custom in 1979 and that there are five children of their marriage. Grace and the deceased were residing with various of their children in the family home at Hohola at the time of the deceased’s death.
6. Following the death of the deceased, Grace as plaintiff applied for grant of administration of the deceased’s intestate estate (the Estate) in these proceedings by the filing on 6 September 2016 of a summons in Form 70 as prescribed by Order 19 Rule 8 of the National Court Rules (NCR).
7. A series of strenuously contested interlocutory motions by other interested parties ensued after Grace commenced suit seeking grant of administration and thereafter the case had a protracted history. However, on 6 January 2023 I delivered a ruling which granted an application by the Public Trustee for joinder as a defendant in this suit. By that same ruling I refused an application by Amazon Realty Ltd (Amazon) which had been seeking leave to intervene. The application by Amazon had been prompted by the company’s managing director, who had wanted the Court to be aware of certain matters relating to the complicated history of the deceased’s 10% minority shareholding in Amazon and other related matters.
8. The reasons for my ruling on the two interlocutory applications which was delivered on 6 January 2023 are given in Re Estate of Paul Nari (2023) N10096. The case was adjourned and a date was fixed for the hearing of the substantive applications of Grace and the Public Trustee, each seeking grant of administration of the Estate. This is the Court’s decision on the two substantive applications which were heard on 6 July 2023.
9. Before embarking on an assessment of the merits of the two competing applications for grant of administration, I consider it useful that there be a summary of the evidence as it stands as to:

(1) the extent and present value of the assets in the Estate; and

(2) those persons who have claimed entitlement to share in the distribution of the Estate.

(1) Estate assets

10. Acting Public Trustee Mr Popuna has deposed in his first affidavit filed on 24 February 2017 that shortly after the deceased’s death in February 2016 the Public Trustee’s Office received notice of several claims in the Estate. The first claim was made by Grace on behalf of herself and her five children. The second claim was made by Solomon Nari on behalf of himself and his mother Nancy Puki. The third claim came from Timil Tape of Kandawalyn Lawyers, who had asserted that his law firm was a creditor of the Estate and that Kandawalyn Lawyers were owed in excess of K360,000 by the deceased for accumulated legal fees, including legal fees in connection with a past court case, WS No. 601 of 2013: Kakau Biribudo & Paul Nari v Amazon Realty Ltd, Kitogara Ltd & Monarch Development Pte Ltd.
11. Subsequent to the Court’s order of 6 January 2023, a fourth notice of claim for participation in distribution of the Estate was given to the Office of the Public Trustee by Michael Nari, who asserts that he is the firstborn and eldest son of the deceased as a result of the customary marriage of his late mother Teresa Puio to the deceased.
12. The case for both Grace and the Public Trustee as presented at the substantive hearing on 6 July 2023 indicates that at this juncture there appears to be only one major asset of any financial significance in the Estate: the deceased’s residence located at Allotment 33 Section 22, Hohola, NCD (the Hohola residence).
13. Evidence regarding the current market value of the Gerehu residence is sketchy. Michael Nari briefly refers to the Hohola residence at paragraph 10 of his affidavit filed on 2 May 2023 and again in paragraph 10 of his later affidavit filed on 5 June 2023.
14. A copy of Grace’s claim form as lodged by Grace with the Public Trustee’s Office back on 28 April 2016 forms part of annexure “D” to Mr Popuna’s first affidavit. Grace stated in her claim form to the effect that the deceased had title to the Hohola property and that it was mortgaged to the Bank of South Pacific Ltd or to the ANZ Bank and that searches of title should be made. No estimate of the value of the Hohola residence was given by Grace in her actual claim form.
15. However, a copy of a separate letter dated 8 April 2016 from Grace addressed to the Public Trustee also forms part of the documentation which is annexure “D” to Mr Popuna’s second affidavit filed on 3 February 2023. Grace stated in this letter that:

“ Our residential home [is] a high cost estate at Hohola, National Capital District (NCD) within Section: 22, Allotment: 33; ... currently land title is held by another person my late husband took a loan against (@ k70,000.00): and that the whole property is worth around K2.5 million.”

16. At the substantive hearing on 6 July 2023, I requested counsel for Grace, Mr Herbert Wally, to speak with his client who was then in Court, and enquire as to what she thought the likely present market value of the Hohola residence might be. Mr Wally spoke with Grace. Mr Wally then informed the Court from the bar table to the effect that Grace considered that the Hohola residence would have a current market value in the vicinity of K1million but that there is still a substantial debt owed to Kandawalyn Lawyers by the Estate for legal fees incurred by the deceased prior to his death. Mr Wally reported that Grace thinks the State Lease for the Hohola residence is held by Kandawalyn Lawyers as security pending settlement of that law firm’s outstanding legal fees. Mr Wally said that Grace and certain members of her family are continuing to reside in the Hohola residence.
17. Apart from the rather brief references to the deceased’s ownership of the Hohola residence in the affidavit material before the Court, there is no independent evidence before the Court as to the past or present market value of that property. No valuation report from any registered valuer or from any real estate company operating in Port Moresby in respect of the Hohola residence has been furnished in any of the affidavit material filed in these proceedings. The best that can be said is that Grace herself considers the Hohola residence to have had a fluctuating market value, initially about K2.5 million in 2016 but that this value has sustained a sharp decrease in value to about K1 million in mid-2023, possibly because of lack of maintenance needed for the property.
18. The administrator of the Estate, when appointed by this Court, will obviously have to investigate the status of the deceased’s title to the Hohola residence and, if it is still in the name of the deceased, take the steps necessary for registration of transmission of the title into the name of the administrator pending settlement of the debt claimed by Kandawalyn Lawyers. The administrator will also need to check the situation regarding the current market value of the Hohola residence as well as the status of the discharge of any mortgage which the deceased may have had with a bank, which was most likely to have been the Bank of South Pacific Ltd. Ultimately the administrator will have to resolve the role that the Hohola residence must take in the finalization of the Estate, which may potentially, but not necessarily, require the sale of the property to create a fund for distribution of the net Estate after payment of all liabilities and expenses to the entitled surviving two wives and adult children of the deceased.
19. There is some suggestion on the Court’s file, in a letter dated 18 September 2016 to the Public Curator (as he was then titled) written by James Iarume, a purported relative of the deceased, that the deceased previously had title to a State leasehold property known as Lot 3 Section 30, Arawa on Bougainville Island, but that the title to this property may have been surrendered by the deceased back to the State many years ago in 2005 in return for a large lump sum settlement payment by the State, thought by Mr Iurume to have been in the vicinity of K7 million. Mr Iarume’s letter is not in evidence but the status of his assertions should in my view be investigated by the administrator after appointment by this Court.
20. As to the deceased’s shareholding in Amazon, Mr Popuna in his second affidavit filed in these proceedings on 30 January 2023 has clarified that in his ex officio capacity as Public Trustee he is a director of that company and that, as a member of Amazon’s board of directors, he represents the interests of the company’s three minority shareholders, all of whom are deceased, including the late Paul Nari.
21. A copy of the annual return for Amazon filed with the Office of the Registrar of Companies for the 12-month period ending 21 February 2022 is annexure “C” to Mr Popuna’s second affidavit. This annual return gives the shareholding structure of Amazon as follows:

Shareholder	Number of Shares	% Shareholding
Monarch Development Pte Ltd	400,000	80%
Jacob Popuna (Public Trustee in trust for late Paul Nari)	50,000	10%
Jacob Popuna (Public Trustee in trust for late Kakau Biribudo)	48,000	9.6%
Jacob Popuna (Public Trustee in trust for late Kajeeman Ghotane)	2,000	0.4%

22. A copy of the financial statements for Amazon for the year ended 31 December 2021 is annexure “D” to Mr Popuna’s second affidavit. The financial statements disclose that the company’s net asset value as at close of the 2021 financial year was K80,992. If those unaudited financial statements are correct, this means that the Estate’s 10% shareholding in Amazon only had a book value of K8,099.20 as at 31 December 2021. That value is apparently rapidly diminishing still further with the passage of time. Mr Popuna deposes in paragraph 22 of his second affidavit:

“ 22. Amazon’s financial statements for the year ended 31 December 2022 are currently being prepared, pending accountant’s confirmation. The company’s net assets as at 31 December 2022 total K5,969.06. 10% of net assets currently = K596.91. ”

23. Mr Popuna has explained in his affidavit evidence that Amazon was previously the registered proprietor of a very large block of agricultural land comprising 177.25 hectares at Gereka, near Bautama, National Capital District (the Gereka property) located adjacent to the shore of Bootless Bay opposite the Tahira Boating Centre. Amazon had intended to develop this property for residential and commercial purposes at a projected cost of US$271million. The Registrar of Titles issued State Lease Volume 30 Folio 8 for the Gereka property to Amazon in May 2006, after the company had been successful following several protracted appeals to the Minister of Lands and Physical Planning under the Land Act 1996. However, the company’s registered title to the property was the subject of a Court challenge by another company, Bootless View Estate Ltd, in judicial review proceedings OS (JR) No. 409 of 2007: Manoka & Bootless View Estate Ltd v Pepi Kimas as Secretary for Lands & Physical Planning, Amazon Realty Ltd & Ors (2019) N8126. On 22 November 2019 the National Court ruled that Amazon’s title to the Gereka property was void. The Court ordered the Registrar of Titles to cancel Amazon’s title to the Gereka property and to re-issue the State Lease for that property to Bootless View Estate Ltd. Amazon then appealed the National Court’s decision by filing SCM No. 57 of 2019 in the Supreme Court on 24 December 2019. An application by Amazon to stay the National Court’s orders of 22 November 2019 was granted by the Supreme Court on 7 October 2020.
24. According to Mr Popuna, the stay order in SCM No. 57 of 2019 is still in force. Mr Popuna says that negotiations have taken place between Amazon and Bootless View Estate Ltd in an endeavour on Amazon’s part to secure a compromise settlement whereby the Gereka property be split into two equal portions, with one portion to be transferred to Amazon and the other portion to be retained by Bootless View Estate Ltd, in return for Amazon discontinuing its appeal. However, it seems that these negotiations are currently at a standstill.
25. Mr Popuna deposes in paragraph 17 of his second affidavit as follows:

“ Without a settlement in the above proceedings, Amazon does not have the rights to the [Gereka property] and effectively all shareholdings are worthless since the Land is the majority of the company’s assets. Should Amazon lose the rights to the Land without a settlement, the Land would have to be written off and the company should commence liquidation as it then would not have sufficient assets to meet its liabilities when they fall due.”

26. The prospect of the deceased’s Estate being able to realise any significant financial return for its 10% shareholding in Amazon, whether in the medium or long term future, seems remote, despite the flurry of interest which the deceased’s shares in Amazon has caused in the past on the part of claimants such as Michael Nari, Solomon Nari and numerous members of the deceased’s clan from Paindaku Village in Enga Province.
27. The Estate’s shareholding in Amazon is a chose in action that currently has, to all intents and purposes, little or no financial value. It is an asset that will only have commercial significance in the Estate if Amazon can negotiate a meaningful settlement with Bootless View Estate Ltd for partition of the Gereka property or if Amazon’s appeal in SCM No. 57 of 2019 is ultimately successful, both of which prospects seem unlikely at this point in time.
28. None of the other few assets of the deceased referred to in the evidence adduced at the substantive hearing on 6 July 2023 seem to have any value, although the administrator, once appointed, should continue to investigate the possibility of the existence of other assets or tracing the history of former assets, such as the deceased’s reputed former title to the property near Arawa on Bougainville Island. There is evidence that Digicel (PNG) Ltd and Vodaphone PNG have constructed telecommunications towers on the Gereka property but it seems that rentals for land use there are no longer paid by those telcos to Amazon but to Bootless View Estate Ltd.

(2) Persons claiming entitlement to share in the distribution of the Estate

29. The affidavit material before the Court at date of substantive hearing on 6 July 2023 indicates that the deceased had three wives as a result of customary marriages.
30. As already mentioned, Michael Nari asserts in his affidavits filed on 5 June 2023 and 29 June 2023 that he is the firstborn son of the deceased. He says that he is presently 47 years of age, indicating he was born in 1976, and that he comes from Paindak Village, Laiagam District, Enga Province. I assume that Paindak Village is an alternative name for Paindaku Village, the birthplace of the deceased. Michael says that his late mother, Teresa Puio, was the first wife of the deceased but that she died in 1978 when he was two years old. Michael says that a year later the deceased, his late father, married his first step-mother Grace in 1979 and that there were two daughters and three sons of that customary marriage. Michael then deposes that the deceased later married Nancy Puki from Wabag, Enga Province on some date or year not disclosed in Michael Nari’s affidavits. Michael says that his second step-mother Nancy Puki and his late father had two children, a son named Solo and a daughter whose name was not disclosed by Michael in his affidavits. However, those two children of Nancy Puki were described by Grace in her claim form lodged with the Public Trustee’s Office on 28 April 2016 as being named Solomon Nari and Synthia Nari, whom Grace described as being illegitimate.
31. The affidavit of Samson Sii filed on 5 June 2023 in support of Michael Nari’s affidavit filed the same day supports Michael Nari’s assertion that the deceased had three wives, all by customary marriage. Mr Sii is a councillor for Council Ward No. 8 of Paindako Village, Laiagam District, Enga Province. I assume that the name “Paindako Village” is yet another variation on the name of the deceased’s Paindaku Village. Mr Sii deposes that particulars of the three wives to whom the deceased was married according to Engan custom are these:
    • Teresa Puio, from Waipu Village, Neneo Clan of Wabag District
    • Grace Painale Nari of Yulu Tribe, Sirunki, Laiagam District
    • Nancy Puki of Yakale Clan, Poas Village, Wabag Central

Mr Sii does not state in his affidavit when these customary marriages took place.

32. There is a further affidavit in support of Michael Nari’s assertion that he is the firstborn son of the deceased. This is the affidavit of Sanda Lanyeta of the Kom Clan, Andaman Tribe from Paindako Village. Mr Lanyeta says that he is 52 years of age. He says that the deceased was first married to Teresa Puio, who died when Michael Nari was two years old, and that the deceased later married Grace, then a primary school teacher, in 1982. This date of 1982 conflicts with the date of 1979, which is when Michael Nari says the deceased married his first step-mother Grace according to custom. Mr Lanyeta’s affidavit does not mention the deceased’s third wife, Nancy Puki.
33. However, the contention that the deceased had the two additional wives according to customary marriages, the wives named by Michael Nari and Samson Sii in their affidavits, has never been acknowledged by Grace. It is Grace’s position that she is the only “legal” wife of the deceased according to custom and that any other children who the deceased may have had were illegitimate, including Michael Nari, Solomon Nari and Synthia Nari. Grace has never recognized the late Teresa Puio or Nancy Puki as being customary wives of the deceased.
34. As to the number of children of the deceased, the affidavit material before the Court indicates that there are eight adult children who claim to be entitled beneficiaries in the Estate, namely:

(1) Michael Nari, born in 1976, presently 47 years of age, who asserts that he is the son of the customary marriage of the deceased and Teresa Puio (which customary marriage is not acknowledged by Grace).

(2) Leanne Nari, born on 28 May 1980, presently 43 years of age, daughter of the customary marriage of the deceased and Grace.

(3) Avillah Karen Nari, daughter, born on 24 March 1985, presently 38 years of age, daughter of the customary marriage of the deceased and Grace.

(4) Castello Nari, born on 6 November 1989, presently 34 years of age, son of the customary marriage of the deceased and Grace.

(5) Naipo Paul Nari, born on 6 November 1995, presently 28 years of age, son of the customary marriage of the deceased and Grace.

(6) Omega Junior Nari, born on 28 August 1999, presently almost 24 years of age, son of the customary marriage of the deceased and Grace.

(7) Solomon Nari, unknown date of birth, who asserts that he is the son of the customary marriage of the deceased and Nancy Puki (which customary marriage is not acknowledged by Grace).

(8) Synthia Nari, unknown date of birth, said to be the daughter of the customary marriage of the deceased and Nancy Puki (which customary marriage is not acknowledged by Grace).

ISSUE

35. The sole issue for the Court to decide is which of the two applications for grant of administration of the Estate is the most meritorious, the application of Grace or the application of the Public Trustee?

LAW RELATING TO GRANT OF ADMINISTRATION IN AN INTESTACY

Priorities for grant of letters of administration

36. A primary function of the National Court is to supervise the legal process by which the property and financial affairs of a person who has died are administered. When a person dies without leaving a valid will appointing an executor and stating how his or her property is to be distributed, the person is said to have died intestate. In those circumstances the person’s property is called his or her intestate estate.
37. The National Court has statutory power by s.38 of the Wills Probate And Administration Act Chapter 291 (WPA Act) to appoint a trusted person to distribute the estate of an intestate person who dies leaving property within the country. The distributor appointed by the Court is called an administrator, who then becomes the personal representative of the deceased.
38. Section 1 of the WPA Act defines “personal representative” as meaning the executor of a will or the administrator of the estate of a deceased person.
39. The legal document which evidences the grant of the Court’s approval of the administrator to call in the assets, pay the debts and distribute the property of a deceased intestate person to the persons legally entitled to it is called “letters of administration”, usually abbreviated to the term “administration”. The Court’s process in this regard is called “grant of administration”. Section 1 of the WPA Act states that where used in the Act, the term “administration”, in relation to the estate of a deceased person, means “letters of administration”, unless a contrary intention appears.
40. As with the executor of a will, the Court-appointed administrator will report to the Court to ensure that the deceased’s financial affairs are resolved. But unlike the executor of a will, where the net estate after payment of the debts and liabilities of the deceased person is distributed according to instructions in the will, the administrator of a deceased’s intestate estate is required to report to the Court as to his or her distribution of the net intestate estate to those persons who are entitled to it according to law.
41. When considering if an applicant should be granted administration, the National Court has regard to the applicant’s solvency, the applicant’s fitness and capability to administer the estate and the rights of all persons interested in the estate, especially where there could be conflict of interest to the detriment of other beneficiaries where a potential administrator of an intestate estate is also a beneficiary.
42. The law of intestacy has a system of priorities which, while it does not give any person claiming to be recognized as the personal representative of the deceased an absolute right to a grant, does give some guidance as to which beneficiary or beneficiaries should be considered for grant of administration, especially where conflict of interest could be in issue. Those priorities are reflected in the provisions of Division 6 of Part III of the WPA Act which govern the distribution of assets in intestate estates. Needless to say, each case depends on its own circumstances.
    43. There are at least four classes of persons or entities to whom grant of administration of an intestate estate may be made by the National Court:

(1) a surviving spouse or entitled next of kin of the deceased claiming recognition as the deceased’s personal representative for the purposes of grant of administration

(2) the Public Trustee

(3) a creditor of the deceased

(4) a trustee company.

44. I now address each of these four classes of persons or entities whom the Court can consider for grant of administration of an intestate estate.

(1) Surviving spouse or entitled next of kin

45. Division 6 of Part III of the WPA Act comprises ss. 81 to 88. It is these provisions which govern the distribution by an administrator of an intestate person’s net estate after payment of debts and liabilities, including prescribing in detail the categories of those persons who are entitled to share in that distribution. These provisions, in particular s.84, are known as the rules of intestacy.
46. Section 84 of the WPA Act sets out detailed criteria for prescribing those persons who are entitled to share in the distribution of an intestate estate. Section 84(1) states:

84. Distribution on intestacy generally

(1) Subject to this section and to Sections 82 and 83, where a person dies intestate—

(a) if the intestate leaves a widow or widower—she or he is entitled, if the intestate leaves issue, to one-third or, if the intestate leaves no issue, to one-half of the estate; and

(b) if the intestate leaves a father and a mother but no widow or widower or issue—the estate shall be distributed equally between the father and the mother, and in the case of the latter for her own use; and

(c) if the intestate leaves a widow or widower a father and a mother but no issue—one-half of the estate shall be distributed equally between the father and the mother, and in the case of the latter for her own use; and

(d) if the intestate leaves a widow or widower and a father but no issue or mother—the father is entitled to one-half of the estate; and

(e) if the intestate leaves a widow or widower and a mother but no issue or father—the mother is entitled to one-half of the estate; and

(f) if the intestate leaves a father but no widow or widower, issue or mother—the father is entitled to the estate; and

(g) if the intestate leaves a mother but no widow or widower, issue or father—the mother is entitled to the estate; and

(h) if the intestate leaves a widow or widower but no issue, father or mother—the widow or widower is entitled to the estate; and

(i) subject to Paragraphs (a) to (h), the estate or the portion of the estate to which those paragraphs do not apply shall be distributed in equal shares among the children of the intestate living at his decease and the representatives then living of any children who predeceased the intestate, or, if there are no such children or representatives, among the next of kin of the intestate who are in equal degree and their representatives.

47. The Court usually gives first priority for appointment of an administrator of an intestate estate to the surviving spouse of the deceased. A widow or widower normally has the strongest claim to grant of administration of the deceased spouse’s estate.
48. Who then is a widow or widower? Clearly, for a person to be a widow or widower in a legal sense the spousal relationship created by marriage must have been subsisting at the time of death of the deceased spouse.
49. In civil law a divorced spouse does not have the legal status of a widow or widower when it comes to who can be appointed by the Court to be the administrator of an intestate estate. This is because the marriage of spouses ceases to exist upon the marriage being dissolved or annulled under the Matrimonial Causes Act Chapter 282. A divorced spouse has no claim in civil law to share in the distribution of the estate of an intestate ex-spouse and therefore has no right to claim for grant of administration of that intestate estate.
50. But if the spouses were separated and not divorced, it may still be possible in civil law for an estranged spouse to be entitled to share in the intestate estate of a deceased spouse, and therefore be considered by the Court for grant of administration if there are no other competing applicants for that grant. Section 43(2) of the Matrimonial Causes Act provides:

43(2) Where a party to a marriage dies intestate as to any property while a decree of judicial separation is in operation, the property devolves as if he [or she] had survived the other party to the marriage.

51. The situation is more complex under customary law, but as a general rule, if a District Court has issued a certificate of dissolution of a customary marriage under s.22A of the District Courts Act Chapter 40^[1], it is arguable that the surviving ex-spouse has no lawfully enforceable claim to share in the distribution of the intestate estate of the deceased ex-spouse of a customary marriage, especially where the acquisition of non-customary assets by the deceased ex-spouse has occurred, such as title to a residential State lease acquired after dissolution of the customary marriage. Any application for grant of administration by the former spouse of a deceased person whose customary marriage has been dissolved by the District Court is likely to be refused by the National Court unless there is compelling evidence of applicable custom to the contrary.
52. As to the situation where a deceased intestate husband had multiple wives by customary marriage, as distinct from a civil law monogamous marriage under the Marriage Act Chapter 280, this is dealt with by s.81(2) of the WPA Act, which states:

81(2) In the application of this Division to the estate of a person who dies leaving more than one wife by valid customary marriages surviving him, any residuary estate or share in an estate to which a single wife would, under this Division, be entitled shall be divided between those wives.

53. Section 84(1) of the WPA Act provides to the effect that where an intestate deceased person has no surviving parents but is survived by a spouse and leaves “issue”, that is to say children, then the net estate is apportioned as to one-third to the surviving spouse and as to two-thirds divided in equal shares among the children. If there are no children, then the surviving spouse receives one-half of the net estate, with the remaining one-half going to other relatives of the deceased in the manner prescribed in the remainder of s.84(1). But where the intestate deceased is survived by two or more spouses as a result of customary marriages and by children of those marriages, by operation of s.81(2) of the WPA Act the spouses must share one-third of the net estate equally between them. If there were no children of those customary marriages, the surviving spouses must share one-half of the net estate equally between them.
54. Section 81(1) of the WPA Act defines the terms “child” and “issue” where used in the Act as including an illegitimate child of the intestate deceased. The legitimacy or otherwise of a child of an intestate deceased is irrelevant for the purposes of establishing entitlement of a child of the deceased under s.84(1) of the Act. What is determinative of a child’s entitlement to share in the distribution of the intestate estate under the rules of intestacy is the biological connection of the child to the deceased, not the classification of the relationship which existed between the child’s parents. Therefore, an illegitimate child is on equal footing with a legitimate child of the deceased when it comes to entitlement to share in an intestate estate.
55. Where there is no widow or widower who survives an intestate spouse, or where there are other circumstances which the Court considers should be taken in to account such as where the deceased had multiple polygamous customary marriages and is survived by two or more spouses and where conflict of interest is likely to arise between the wives if one of them were to be granted administration by the Court, the next priority in terms of a person who the Court will consider for eligibility for grant of letters of administration is one of those beneficiaries who are “next of kin” as prescribed in s.84(1) of the WPA Act as being entitled to share in the distribution of the intestate estate other than spouses. Section 84(1) deals with the many permutations which can arise as a result of the differing relationships between a deceased person and his or her parents, children, siblings and other next of kin who survive the deceased.
56. It is of importance to note at this juncture that s.84(1)(i) of the WPA Act operates such that where there is no spouse or parent who has survived an intestate deceased, the net intestate estate is in those circumstances to be shared equally among the surviving children of the deceased and, if applicable, the representatives of those children of the deceased who may have predeceased the deceased. If there are no such children, whether surviving or deceased, only then can the net intestate estate be shared equally among the remaining relatives of the deceased, such as uncles, aunts, cousins, nephews and nieces, who are covered by the term “next of kin” in s.84(1)(i) of the WPA Act.
57. The term “next of kin” normally connotes those relatives of the deceased who are in nearest degree of biological relationship to the deceased. This term was explained by Kelly J of the pre-Independence Supreme Court in Re Johns [1971] PNGLR 110 at p.116 as meaning “nearest in proximity of blood”, his Honour having adopted that meaning as given by Isaacs J in the Australian case of Gutheil v Ballarat Trustees, Executors and Agency Co. Ltd [1922] HCA 19; (1922) 30 C.L.R. 293 at p. 305.
58. However, the term “next of kin” has an expanded meaning for the purposes of the intestacy rules set out in s.84(1) of the WPA Act. Section 84(2)(f) makes it clear that the term also includes the step-children of a deceased person. Section 84(2)(f) of the WPA Act provides:

84(2) In the application of Subsection (1)(i)—
...

(f) no distinction shall be drawn between males and females or between relationship of the whole blood and relationship of the half blood ...

59. In biological terms, a half-blood relationship is the relation between persons having only one parent in common. This terminology arises because we receive half of our DNA from each parent. Full-blood siblings have the same parents in common and are fully related to each other because they are half-related through their mother and half-related through their father. They are known as siblings of the whole blood. Half-blood siblings are known as such because they only share one parent, not both parents.
60. In short, step-sons and step-daughters, being half-blood siblings, are deemed by s.84(2)(f) of the WPA Act to be “next of kin” of a deceased intestate, and rank equally in the distribution of the net intestate estate with children of full-blood connection to the deceased.
61. But since s.84 of the WPA Act allows persons in the same degree of relationship to take very different interests in an intestacy situation, and where there is no surviving spouse or parent, the next-of-kin to whom the Court would normally give preference for grant of administration is that relative of the deceased who is entitled by operation of s.84(1)(i) of the Act to share in the distribution of the estate and who has the largest interest in the estate.
62. Where not only the degree of relationship but also the interests are equal, then, as a general rule, the Court will next give preference for appointment of an administrator of an intestate estate to a close next-of-kin having business or professional experience in dealing with financial matters rather than a relative who is inexperienced in the management of assets and money. And in this situation, kin of the whole blood would be preferred by the Court to kin of the half-blood for appointment as administrator of an intestate estate.^[2]

(2) Public Trustee – alternative applicant for grant of administration

63. The Public Trustee has standing in a wide variety of circumstances to apply for grant of administration in respect of an intestate estate. Those circumstances are clearly set out in s.10 of the Public Trustee Act, which relevantly provides:

10. Orders To Administer

(1) On the application of the Public Trustee, the National Court or a Judge may grant to the Public Trustee an order to administer the estate of any deceased person leaving property within the jurisdiction where—

(a) the deceased left no executor, widow, widower or next of kin resident within the jurisdiction, who is willing and capable of acting in the execution of the will or the administration of the estate; or

(b) the executors named renounce probate of the will of the deceased, and all the persons primarily entitled to administration decline, by instrument filed with the Registrar, to apply for administration; or

(c) probate or administration is not applied for within three months after the death of the deceased; or

(d) after the expiration of 30 days after the death, there is no reasonable probability of application being made within the period of three months after the death; or

(e) the estate or any portion of the estate is liable to waste, and the executor, widow, widower or next of kin—

(i) is absent from the locality of the estate; or

(ii) is not known; or

(iii) has not been found; or

(iv) requests the Public Trustee in writing to apply for the order;

(f) the estate, or any portion of the estate, is—

(i) of a perishable nature; or

(ii) in danger of being lost or destroyed; or

(g) great expense may be incurred by any delay.

64. The most common situation where the Public Trustee will apply for grant of administration of an intestate estate is pursuant to s.10(1)(e)(iv) of the Public Trustee Act, which is where a surviving spouse or next of kin of the deceased requests the Public Trustee to do so and there is a likelihood that if the Public Trustee declines to do so, then the assets of the estate could be adversely affected.

(3) Creditor claiming grant of administration – alternative applicant for grant of administration

65. Application by a creditor seeking grant of administration of an intestate estate can be made under Division 5 of Order 19 NCR. Division 5 of Order 19 NCR comprises Rules 31, 32 and 33 which permit a creditor to apply for grant of administration subject to the creditor having first obtained leave of the Court to do so.
66. With reference to a creditor who wishes to apply for grant of administration of an intestate estate to obtain settlement of a debt, Order 19 Rule 32(4) NCR provides:

32. Conditions
...

(4) Where a creditor desires to commence proceedings for a grant of administration and the deceased did not leave a will, he shall serve on the widow or widower of the deceased and on every person entitled in administration of the estate on intestacy a citation to pray for administration.

67. Section 66 of the WPA Act relevantly provides:

66. Removal of administrator, etc., in creditors’ administration

(1) On being satisfied that—

(a) there has been negligence or maladministration in the affairs of estate of which a person has obtained administration in the capacity of a creditor;

...

the National Court or a Judge may—

(c) order the Registrar to assign the administration bond to the Public Curator or to a person named in the order; and

(d) if the Court or Judge thinks fit—

(i) remove the creditor from the position of administrator and appoint the Public Curator or another person named in the order to be administrator in place of the administrator so removed, on such terms and conditions as the Court or Judge thinks proper, and

(ii) make all necessary orders for vesting the estate in the new administrator and as to accounts, and such order as to costs as the Court or Judge thinks proper.

(4) Trustee Company – alternative applicant for grant of administration

68. Trustee companies are also statutorily entitled, subject to certain conditions, to apply for grant of administration of an intestate estate. Section 7 of the Trustee Companies Act Chapter 288 states:
    7. Authorisation, by person entitled to apply, of trustee company to obtain administration

(1) A person who is entitled to obtain administration of the estate of an intestate as—

(a) the spouse, or

(b) the next of kin; or

(c) a creditor,

of the intestate, may, instead of applying himself for administration, authorize a trustee company to apply for administration of the estate.

(2) Administration of the estate of the intestate may be granted to the company on its own application.

69. No reported case of a contest between a trustee company and another applicant for a grant of administration has yet come before the National Court. On principle it seems that in such a case the Court would incline to appoint the trustee company if it had the support and consent of the beneficiary or beneficiaries or creditor having the largest interest in the distribution of the intestate estate.

CONSIDERATION

70. As already noted, the primary applicant for grant of administration in respect of the intestate estate of the late Paul Nari, is the deceased’s second wife, Grace, who is the plaintiff in these proceedings.
71. This suit was commenced when Grace, by her lawyers then acting for her, Namani & Associates, filed a summons on 6 September 2016. seeking the grant to her of administration of the subject Estate. It is not in dispute that Grace’s summons is in the correct form, which is Form 70 of Schedule 1 NCR, and is the mode for commencing non-contentious proceedings for grant of administration prescribed by Order 19 Rule 8(1) NCR.
    72. I am satisfied that all of the documentation required to be filed by Order 19 Rule 25 NCR at first instance in support of an application for grant of administration of an intestate estate has been filed for Grace, including two administration bonds. My reasons for this finding are set out at length at pages 3 to 5 in my earlier decision delivered in these proceedings on 6 January 2023: Re Estate of Paul Nari (2023) N10096. I do not propose to repeat those reasons in this present decision.
73. I am also satisfied that the Public Trustee’s application by way of cross-claim for grant of administration in respect of the subject Estate is in order, although belatedly so.
74. At the time of delivery of my earlier decision on the Public Trustee’s motion for joinder on 6 January 2023, Acting Public Trustee Mr Popuna signalled his intention to continue to contest Grace’s application for grant of administration by way of a cross-claim.
75. Term 5 of the order made by the Court on 6 January 2023 directed the Public Trustee to cause notice of intention to apply for administration to be published in a daily newspaper circulating in Papua New Guinea and to also file a cross-claim seeking grant of administration of this Estate no later than 31 January 2023.
76. The Public Trustee caused notice of intention to apply for administration to be published in the National newspaper on 31 January 2023.
77. The Public Trustee’s oath of office, required by Order 19 Rule 25(9) in Form 79 NCR, to well and truly administer the Estate if the Court were to grant administration to the Public Trustee, was filed on 21 April 2023.^[3]
78. However, the Public Trustee omitted to file any actual cross-claim. Mr Popuna has explained that the reason for this omission was not so much oversight but more that he understood that his affidavit material stood as the Public Trustee’s cross-claim. This is because although Order 19 Rule 43 NCR allows for a cross-claim to be filed when administration proceedings become contentious, there is no actual form prescribed in the NCR for such a cross-claim.
79. When the two contested applications of Grace and the Public Trustee came on for substantive hearing on 6 July 2023, no issue as to the absence of a formal cross-claim by the Public Trustee was taken by counsel for Grace. It was assumed by the Public Trustee and by counsel for Grace that the cross-claim was validly in place. It was not until I commenced the writing of this decision and conducted a review of the Court’s files for these proceedings that I realised no cross-claim had actually been filed by the Public Trustee. As I was concerned that there should be a proper cross-claim on the Court’s file to found the Public Trustee’s application for administration of the Estate, on 25 July 2023 I granted leave to the Public Trustee to forthwith file and serve a formal cross-claim. The Public Trustee promptly complied with that direction of the Court and filed his cross-claim the same afternoon,^[4] thereby rectifying the irregularity which had occurred because of the absence in the NCR of any prescribed form of cross-claim for the purposes of Order 19 Rule 43.
80. I have considered the evidence before the Court and the submissions of the parties. I now address the merits of each of the two competing applications for grant of administration of the Estate.

Application of Grace Painale Nari for Grant of Administration

81. It is submitted for Grace by her counsel Mr Wally that there is an abundance of reasons why Grace should be granted administration of the Estate in preference to the Public Trustee. The reasons advanced in support of Grace’s application, which I have paraphrased below to give clarity, are these:

(1) Grace has the legal right under s.15(3), (4) and (5) of the Public Trustee Act to apply for administration in that she gave notice to the Public Trustee of her intention to apply for administration, and she made her formal application for administration by filing these proceedings within the time limited by s.15(4) to do so.

(2) The case of Wagun v Pilembo (2008) N3487 is authority that supports the proposition that Grace’s legal right to apply for administration takes precedence over the legal right of the Public Trustee to also apply for administration.

(3) There is no evidence on record to show that Grace and other beneficiaries in the Estate had requested the Public Trustee to apply for administration on their behalf.

(4) The Public Trustee’s cross-claim has failed to meet the requirements of s.10 of the Public Trustee Act.

(5) Grace has met all requirements under Order 19 NCR to apply for grant of administration.

(6) Grace is educated, of sound mind and is a fit and proper person to administer the Estate on behalf of all legitimate beneficiaries “as and when they show up and register their claim”.

(7) The Public Trustee would be entitled to a fee for the initial management of the Estate by his Office, which can be settled.

82. I now respond to each of these seven factors, which it is submitted by Mr Wally, when taken as a whole, outweigh Mr Popuna’s reasons for grant of administration of the Estate to the Public Trustee and favour the Court’s grant of administration to Grace.
83. As to the submission that Grace has the legal right to apply for administration under s.15(3), (4) and (5) of the Public Trustee Act, I find that these provisions have no relevance to Grace’s entitlement to apply for grant of administration. These subsections state:

15. Powers pending grant

...

(3) Subject to Subsection (6), before the Public Trustee first acts under this section in respect of an estate, he shall give notice, in writing or by telegram, to any person known to him as a person who (not being an infant or of unsound mind) would be entitled to obtain probate or letters of administration, informing him that he intends so to act unless the person proceeds to apply for probate or letters of administration immediately.

(4) If the person referred to in Subsection (3)—

(a) does not, within 21 days after the posting or other service of the notice or of the despatching of the telegram, as the case may be, give notice, in writing or by telegram, to the Public Trustee that he intends to apply for probate or letters of administration; or

(b) gives notice in accordance with Paragraph (a) but fails to apply within 14 days after giving the notice for probate or letters of administration; or

(c) applies for probate or letters of administration and the application fails,

then, unless the National Court otherwise orders, the Public Trustee may proceed to exercise any of the powers and authorities given by this section.

(5) In the event of more persons than the one being entitled to take out probate or letters of administration, it is sufficient for the purposes of this section if notice is given to one of the persons only.

84. Section 15 of the Public Trustee Act relates to the powers of the Public Trustee to take steps to manage the affairs of a deceased person pending formal grant of administration by the National Court.
85. As previously observed in this decision, s.10(1) of the Public Trustee Act sets out the circumstances in which the Public Trustee can apply to the National Court for an order to administer an intestate estate. Those numerous circumstances include:
    • where administration is not applied for by any entitled person within 3 months after the death of the deceased: s.10(1)(c)
    • where the estate is liable to waste, and the widow, widower or a next of kin requests the Public Trustee in writing to apply for an order to administer the estate; s.10(1)(e)(iv).
86. Section 10(3) makes it clear that an order made by the National Court under s.10(1) of the Act authorising the Public Trustee to administer an estate gives the Public Trustee “the same powers, rights and obligations in respect of the estate as he would have had if administration had been granted to him”. In other words, an order made by the National Court for the Public Trustee to administer an intestate estate under s.10(1) of the Act is deemed to be the same in law as if it had been order for the grant of administration by the Court to any other entitled applicant.
87. Subsections 15(3), (4) and (5) of the Public Trustee Act must be viewed in context with s.15(1) of the Act. Section 15(1) relates to the interim powers accorded by the Act to the Public Trustee to temporarily protect and administer the estate of a deceased person pending any formal grant or order for administration which may later be made by Court in favour of an entitled applicant or in favour of the Public Trustee, as the case may be. Where the Public Trustee intends to take those temporary steps, this is where Sub-sections 15(3), (4) and (5) come into operation. They create a statutory obligation on the Public Trustee to give written notice to any person who the Public Trustee knows would be entitled to apply for probate of a will or for grant of administration that unless that person applies to the National Court for grant of probate or administration immediately, the Public Trustee will exercise his interim powers of administration under s.15(1) of the Act.
88. Where such notice is given by the Public Trustee, time limits are set by s.15(4) of the Public Trustee Act for the entitled person to respond and to take immediate action. An applicant for grant of probate or administration has 21 days from date of posting of the Public Trustee’s notice to respond by giving notice to the Public Trustee of that applicant’s intention to apply to the National Court for grant of probate or grant of administration. The applicant then has a further 14 days to file his or her summons for grant of probate or grant of administration, with the consequence that failure to do so enables the Public Trustee after the expiration of that 14-day period to then exercise his statutory powers of interim administration of the estate as if the Court had already granted him a formal order to do so under s.10(1) of the Act. The Public Trustee can also exercise the same statutory powers of interim administration immediately upon the application of a person referred to in s.15(3) of the Act for grant of probate or administration being refused or dismissed by the Court.
89. Returning to the present case, there is no evidence before the Court that the Public Trustee ever gave notice pursuant to s.15(3) of the Public Trustee Act to Grace, or to any other person entitled to apply for grant of administration of the Estate, that the Public Trustee intended to exercise his interim powers of administration of the Estate available to him under s.15(1) of the Act. Whether the Public Trustee did in fact give such notice or notices pursuant to s.15(3) of the Act to Grace and other persons entitled to apply for grant of administration is not in issue in these proceedings. Therefore, the submission which was made for Grace that she had the legal right to apply for grant of administration by reliance on the notice provisions set out in s.15(3), (4) and (5) of the Public Trustee Act is flawed. Those subsections have no relevance to Grace’s legal entitlement to apply for grant of administration. That entitlement is referable instead to Grace’s contention that she should be considered by the Court to be the most appropriate “personal representative” of the deceased to whom administration of the Estate should be granted under s.38 of the WPA Act by reason of factors such as her customary marriage to the deceased, her widowhood and other factors advanced on her behalf, none of which have any connection to the notice provisions in s.15(3), (4) and (5) of the Public Trustee Act. The submission made for Grace in this regard must necessarily fail.
90. Next, counsel for Grace asserts that the case of Wagun v Pilembo (supra) supports Grace’s position that her legal right to apply for administration should take precedence over the legal right of the Public Trustee to also apply for administration.
91. I am unable to see how the case of Wagun v Pilembo assists Grace’s claim. One of the issues in that case, and there were many, was whether the Public Trustee has interim power to pay urgent expenses such as school fees for children of the deceased from a deceased’s bank account prior to the Court’s grant of administration of the intestate estate to him or to anyone else. This involved discussion by Makail J of the interim powers of the Public Trustee under s.15(1) of the Public Trustee Act to take possession of and deal with property of the deceased prior to formal grant of administration. While it is correct that his Honour at paragraph 98 of his decision refers to s.15(3) of the Public Trustee Act as “allowing any other person other than the Public Curator to apply for letters of probate or letters of administration”, that observation was made by his Honour in reference to the situation where the Public Trustee has availed himself of the notice procedure under s.15(3) calling on an entitled person to apply for grant of probate or grant of administration, in default of which the Public Trustee would exercise his interim powers of administration of an estate under s.15(1). His Honour did not hold that s.15(3), (4) and (5) of the Act gave precedence to “any other person” to be granted probate or administration of a deceased estate. The determination of that precedence remains squarely within the jurisdiction and discretion of the Court under s.38 of the WPA Act, unaffected by s.15 of the Public Trustee Act.
92. It is next submitted for Grace that there is no evidence on record to show that Grace and other beneficiaries in the Estate have ever requested the Public Trustee to apply for grant of administration on their behalf, the implication being that the Public Trustee is acting on his own initiative, without the support of other beneficiaries in the Estate. This submission is simply incorrect. While it may be true that Grace has never requested the Public Trustee to apply for grant of administration, there is uncontested evidence before the Court that the Public Trustee’s cross-claim for grant of administration is supported by Michael Nari, the reputed firstborn son of the deceased.
93. Michael Nari deposes in paragraphs 10 and 12 of his affidavit filed on 29 June 2023 as follows:

“ 10. The lawful and natural or most unblemished person fit and proper to administer my late father’s estate is none other that [sic] the Public Curator of Papua New Guinea.

...

12. In the interest of justice and for purposes of fairness in distribution with law and custom, I wholeheartedly p[r]ay to this honourable court to grant the letter of administration to the Public Curator.”

These assertions are of course a combination of opinion evidence and submission on the part of Michael Nari and therefore have no probative value, but they are clearly indicative that Michael Nari fully endorses the Public Trustee’s application for grant of administration and opposes Grace’s application.

94. Acting Public Trustee Mr Popuna states at paragraphs 8 and 9 of his affidavit filed on 26 June 2023:

“ 8. That I am aware that the deceased lived a polygamous life and married more than one wives and in those different marriages bore many children who are matured adults who have the same status and right as the Applicant [Grace].

9. Further, one of the sons filed to be party to these proceedings is Michael Nari, Ct Doc No: 51 in the proceeding WPA No. 52 of [2016] whom we have to administratively deal with including others.”

95. Among those “others” are the deceased’s wife Nancy Puki and the two children of Nancy’s alleged customary marriage to the deceased, Solomon Nari and Synthia Nari, which children are referred to by Grace in her own claim form which was lodged with the Office of the Public Trustee on 28 April 2016.
96. Furthermore, Mr Popuna deposes as follows at paragraph 10 of his affidavit filed on 26 June 2023:

“ 10. On 3^rd May 2016 the son of the second widow, Solomon Nari and his mother Nancy Puki Nari wrote to this office giving Notice and registering their claim. This office registered their claim as part of the administration process.”

97. There is therefore compelling evidence that even if other persons claiming to be entitled beneficiaries in the Estate such as Solomon Nari and his mother Nancy Puki have not directly “requested” the Public Trustee to apply for grant of administration of the Estate on their behalf, the mere fact that they have given notice of their claims to the Office of the Public Trustee is sufficient to show that those other persons claiming to be entitled beneficiaries in the Estate take it for granted that the Public Trustee will be lawfully administering the Estate to protect their respective interests, which in turn requires the Public Trustee to apply to the Court for grant of administration. This effectively rebuts the submission made for Grace that there is no evidence to show that other beneficiaries have “requested” the Public Trustee to apply for grant of administration.
98. The next submission as to why Grace’s application for grant of administration should take precedence over the application of the Public Trustee is that it is said by Mr Wally that the Public Trustee’s application fails to meet the requirements of s.10 of the Public Trustee Act. This submission has no substance. As already observed, Section 10 of the Act sets out the circumstances in which the Court can grant to the Public Trustee an order to administer the estate of a deceased person. I am satisfied that the Public Trustee is entitled to apply for such a grant in the present Estate because, on the facts of this case as presented in evidence, the following two subsections of s.10 of the Public Trustee Act clearly apply:

(1) Section 10(1)(c) – where administration is not applied for within 3 months after the death of the deceased.

I observe that no-one applied for grant of administration within 3 months of the date of death of the deceased on 3 February 2016. Grace filed her summons for grant of administration in these proceedings on 6 September 2016, 7 months after the death of the deceased. The filing by Grace of her application by summons outside the 3-month period after the death of the deceased did not operate to prohibit or bar any application for grant of administration being made after that 3-month period by the Public Trustee, or indeed by anyone else.

(2) Section 10(1)(e)(iv) – the estate or any portion is liable to waste and a widow or next of kin has requested the Public Trustee in writing to apply for grant of administration.

In this instance I am satisfied on the evidence that the Estate required interim measures to be taken by the Public Trustee to prevent “waste” or diminution of value of property, particularly as regards protection of the deceased’s 10% shareholding in Amazon. It is also incontrovertible that Solomon Nari, on behalf of himself and his mother Nancy Puki, gave notice of their claim to the Public Trustee by letter dated 3 May 2016, and thereby in effect requested the Public Trustee to administer the Estate taking into account their claim. Solomon Nari’s letter is annexure “D” to Mr Popuna’s affidavit filed on 24 February 2017.

99. The next submission in support of Grace’s position that her application should be preferred to that of the Public Trustee is that Grace’s application has met all of the procedural requirements under Order 19 NCR. This is not contested. I have already stated earlier in this decision that I am satisfied that Grace’s application is procedurally compliant with Order 19 Rules 8(1) and 25 NCR. However, as the Public Trustee’s application by cross-claim for grant of administration is equally procedurally compliant, this factor is neutral and to that extent it has no significant bearing on the issue as to which applicant is best capable of administering the Estate for the benefit of Grace and Nancy Puki, each said to be widows of the deceased by reason of customary marriage, and for the benefit of all adult children claiming to be next of kin of the deceased.
100. The next factor advanced for Grace is that she is educated, of sound mind and is a fit and proper person to administer the Estate. As to what is meant by the phrase, “a fit and proper person”, I address this term in my observations below in connection with the submissions made for the Public Trustee. However, I unreservedly accept on the evidence adduced by Grace that she is indeed well-educated as a former schoolteacher and project coordinator with the National Council of Women and that she has no present impairment to her physical or mental faculties which could prevent her from endeavouring to carry out the duties and obligations of an administrator if she were to be appointed as such by this Court. I do, however, have serious reservations as to whether Grace is the proper person to administer the Estate, given the evidence as to the history of the difficult, often hostile, relations which exist between Grace and Michael Nari. I consider that the appointment of Grace as administrator of the Estate would necessarily place her in a conflict of interest situation, particularly as regards Michael Nari’s claim to be the firstborn son of the deceased which, if proven, would mean that he is entitled to share in the distribution of two-thirds of the net Estate equally with Grace’s own five adult children and with Nancy Puki’s two adult children.
101. There is the further concern that even if Grace were to be able to demonstrate impartiality in administration of the Estate, that she does not have the commercial or financial experience necessary to deal with the Estate’s 10% shareholding in Amazon presently held by the Acting Public Trustee in trust for the Estate or to be a director of that company in lieu of the Public Trustee or to be part of the negotiating team in the company’s efforts to secure a settlement with Bootless View Estate Ltd leading to a withdrawal or discontinuance of Amazon’s appeal in SCM No. 57 of 2019 regarding the land at Gereka.
102. The final factor which is asserted for Grace as a reason why she should be appointed as administrator in preference to the Public Trustee is that her counsel Mr Wally says that the Public Trustee’s fee for his temporary or initial management of the Estate can be “settled accordingly”. Mr Wally does not say how or where payment of the Public Trustee’s fees to date could possibly be sourced.
103. Section 15(8) of the Public Trustee Act states:

15(8) Any person who takes out probate or letters of administration of the estate of the deceased person after the Public Trustee has taken any action under this section must pay any fees and expenses payable to, or incurred by, the Public Trustee before he is entitled to grant of probate or letters of administration.

104. Mr Popuna has said in his evidence that apart from the Hohola residence and the remote chance of a settlement with Bootless View Estate Ltd of Amazon’s claim in respect of the land at Gereka, there are no other assets of substance in the Estate, and certainly no present income stream.
105. The contention that Grace could pay the Public Trustee’s accrued interim administration fees for managing the Estate to date, no matter how small or great those fees may presently be, before any grant of administration to her is, I find, verging on fantasy. Grace herself says in her affidavit filed on 31 January 2023 that she no longer has any independent income of her own because of the loss of her employment with the National Council of Women due to matters arising from the Court dispute over the land at Gereka. And it is clear from Mr Popuna’s evidence that the Estate has no present funds to pay the fees of the Office of the Public Trustee for its management services for the Estate to date.
106. In summary, I find that only one of the seven factors submitted for Grace by her counsel in support of her claim for precedence over the Public Trustee for grant of administration can be sustained, that of procedural compliance and even so that factor is neutral because it is counterbalanced by the Public Trustee’s own procedural compliance. I find that the remaining six of the factors or reasons advanced by counsel for Grace have no substance for the reasons I have given.
     

Application of Public Trustee for Grant of Administration

107. Mr Popuna has advanced three reasons why the application of the Office of the Public Trustee for grant of administration of the Estate of the deceased should be given precedence over Grace’s application. The Public Trustee’s reasons can be summarised as follows:

(1) The Court should, as a matter of principle, exercise its jurisdiction under s.38 WPA Act to grant administration of an intestate estate to the applicant who is the most fit and capable person or entity to carry out that appointment. Mr Popuna contends that in the circumstances of this case it is the corporate Office of the Public Trustee that he represents which is the most fit and capable entity to perform the duties and obligations of the Court-appointed administrator of the present Estate.

(2) The application of the Office of the Public Trustee for grant of administration has support from three reputed beneficiaries in the Estate: Michael Nari, Solomon Nari and Nancy Puki.

(3) The Public Trustee is an independent entity and has no entitlement to distribution in the Estate, unlike Grace who would be placed in a potential conflict of interest situation if administration of the Estate were to be granted to her.

108. I consider that the first of the Office of the Public Trustee’s reasons has merit, both in principle and in the application of that principle to the circumstances of this case.
109. I have already observed that the WPA Act gives no direct guidance as to the criteria to be applied when the Court is required to determine who should be granted formal administration of an intestate estate, particularly where there are two or more contested applications for grant of administration. There is no “fit and proper” test prescribed in the WPA Act for the Court’s appointment of an administrator. However, the Court has, in the absence of such a test, developed the system of priorities I have previously alluded to, which is based on the ranking of beneficiaries under the rules of intestacy set out in ss.81 to 84 of the WPA Act.
110. As to the attributes that a Court-appointed administrator should possess, s.65(1) of the WPA Act is indicative that fitness and capability to act are relevant criteria. Section 65(1) of the Act, which deals with the discharge and removal of executors and administrators, states:

65. Discharge or removal of personal representative

(1) Notwithstanding anything in any other law, where an executor or administrator to whom probate or administration has been granted, or an administrator who has been appointed under this section—

(a) remains out of the country for more than two years; or

(b) desires to be discharged from his office of executor or administrator; or

(c) after the grant or appointment

(i) refuses to act, or is unfit to act, in that office; or

(ii) is incapable of acting in that office,

a Judge may, on application in a summary way by summons in Chambers, order—

(d) his discharge or removal; and

(e) if the Judge thinks fit, the appointment of some other person as administrator in his place,

on such terms and conditions as the Judge thinks proper and may make—

(f) all necessary orders—

(i) for vesting the estate in the new administrator; and

(ii) as to accounts; and

(g) such order as to costs as the Judge thinks proper.

[underlining added]

111. Logic dictates that if a Judge has power under s.65(1) WPA Act to order the removal of a Court-appointed administrator because of unfitness or incapability to act as administrator, then the two qualities of fitness and capability to act are statutorily required of a person or entity who was appointed by the Court in the first place.
112. The test to determine whether a person or entity is fit to perform the duties and responsibilities of a position or profession regulated by statute is often expressed as the “fit and proper person” test. The test can differ in certain respects depending on the intent of the legislation which regulates the position, office or profession concerned. But there are certain aspects of the test which I consider are common to the many situations where the “fit and proper person” test applies.
113. In Re Application by Godwin Haumu for Admission as a Lawyer (2001) 649 Kandakasi J (as he then was) considered the meaning of the phrase “fit and proper person” in the context of an application for admission of a lawyer under s.25 of the Lawyers Act 1996. His Honour, in his discussion of the phrase “fit and proper person”, referred to several earlier cases: Re John Sifter [1975] PNGLR 435, a case involving an applicant for registration as a dentist; and Costello v Controller of Civil Aviation [1977] PNGLR 229, which concerned an applicant for a licence under the Civil Aviation Regulations 1973. His Honour held at p. 230:

“ The phrase “fit and proper person” within the meaning of the s.25(3)(d) of the Lawyers Act 1986, refers to such matters as physical and mental condition, English language proficiency, character, reputation or standing of the person applying for admission as lawyer.”

114. See also Re Yala Sem Yatu (2017) N7042, where David J adopted and applied the same general considerations, also in a matter involving the “fit and proper person” test in an application for admission as a lawyer.
115. I consider that these same factors of physical and mental condition, English language proficiency and good character, reputation or standing, all of which are indicative of fitness, are of equal application to any person or entity seeking grant by the Court of administration of an intestate estate pursuant to s.38 WPA Act. To those factors must be added the condition that the successful applicant for grant of administration must also be capable of administering the estate by having the actual means to manage the estate and to account to the Court for the duration of the applicant’s period of administration. Failure to exhibit or adhere to these standards of fitness or failure to have the capability to administer an estate can result in the Court’s removal of an administrator under s.65(1) of the WPA Act.
116. In Lang v Wagun (2008) N3592 the plaintiffs sought orders for the removal of the Public Trustee as the Court-appointed administrator of an estate and the consequential appointment of the widow of the deceased as administrator in lieu of the Public Trustee. It was held by Cannings J in this first of two cases involving the same parties that s.65(1) of the WPA Act is confined to situations where the administrator of an estate is physically or mentally infirm and therefore, in that restricted sense, unfit to or incapable of administering a deceased estate. His Honour ruled in that case that as it was not proven that the Public Trustee was physically or mentally unfit to act or that he was incapable of acting in that office, the plaintiff’s application for his removal as the Court-appointed administrator of the estate was refused.
117. In the present instance, Mr Popuna has been appointed to head the Office of Public Trustee as its acting incumbent. Mr Popuna submits that he is of good standing in the community. There is no evidence before this Court of any matter adverse to Mr Popuna’s general reputation. Mr Popuna is clearly proficient in the English language. He holds a Bachelor of Laws degree from the University of Papua New Guinea. He has personally appeared on several occasions before this Court in these proceedings. In my observation Mr Popuna is in good health and has no impairment of mental function.
118. I find that on the evidence as presented, Grace and Mr Popuna are both of good reputation and standing in the community. They are both proficient in the English language, although Mr Popuna has the obvious edge in this regard because of the extent of his tertiary education. In my observation, there is nothing to suggest that either Grace or Mr Popuna have any impairment of their physical or mental faculties. As far as fitness to administer the Estate is concerned, both Grace and Mr Popuna as Acting Public Trustee are very much on par.
119. It is the separate factor of capability to administer the Estate which to my mind is one of the important distinguishing features of the two applications for grant of administration which are now before the Court.
120. Grace’s own evidence is that she is without income at present and is dependent on Amazon to financially assist her from time to time. In turn, Amazon is a company which is virtually defunct at present and which would only be able to retrieve significant commercial value, previously assessed at over K5million, if it were to succeed in its Supreme Court appeal SCM No. 57 of 2019 or if it were to secure a sizeable out-of-court settlement of its dispute with Bootless View Estate Ltd regarding the Gereka land.
121. As Grace is without any secure source of income at present, it is difficult to appreciate where she could obtain the financial means to administer the Estate, which will need funds to pay, among other expenses, the legal costs of pursuing the Supreme Court appeal and to take other legal action that may be required to resolve contentious issues in the Estate.
122. No evidence has been adduced for Grace which would tend to show that she has access to home office and accounting facilities which would enable her to attend to the correspondence and preparation of documentation necessary to manage the Estate to its finalization.
     123. In contrast, Mr Popuna submits that in his capacity as the Acting Public Trustee he has the required experience in managing the property and assets of persons who have died intestate and in dealing with the many commercial issues that arise in such estates. He submits that it is this practical experience which gives both him and the Office of the Public Trustee a substantial advantage over Grace, who has no experience in the management of deceased estates.
124. It is a matter of public record that the Office of the Public Curator is located on Level 3 of West New Britain Haus, Independence Drive, Waigani, NCD. The Office of the Public Curator has modern computer and photocopying facilities. It employs several lawyers and secretarial staff.
125. The evidence accordingly favours the Public Trustee in terms of having superior capability of administering the Estate when compared to the very limited means which Grace has at her disposal to do so. The situation would be different if the only entitled beneficiaries in the Estate were Grace and her children.
126. In short, Grace and the Public Trustee are evenly balanced as to their respective fitness to administer the Estate in the future. However, the Public Trustee has the practical advantage in matters of capability. The first of the Public Trustee’s submissions as to why he is better placed to administer the Estate is accordingly sustained.
127. The second of Mr Popuna’s submissions as to why the Office of the Public Trustee should be preferred by the Court to administer the Estate in future, as opposed to Grace, is because Michael Nari does not consent to Grace being appointed as administrator of the Estate. Mr Popuna submits that the Public Trustee has the support and consent of Michael Nari, Solomon Nari and Solomon’s mother Nancy Puki to administer the Estate.
128. The evidence before the Court shows that Grace does not recognize Michael Nari’s claim. The evidence also indicates that Grace appears to be ambivalent about Nancy Puki’s claim. Mr Popuna argues that if Grace were to be granted administration of the Estate, she would be inevitably biased in favour of her own five adult children and it would be unrealistic to expect that Grace would be able to fairly represent the interest of reputed beneficiaries such as Michael Nari and Nancy Puki without succumbing to preference in favour of her own children. I accept the self-evident validity of this submission by the Public Trustee.
129. The Public Trustee’s third submission is that the Office of the Public Trustee, being a body corporate, is independent and unbiased. It has no entitlement to share in the distribution in the Estate and therefore has no conflict of interest.
130. I have already touched on the conflict of interest issue in connection with the submissions made for Grace. The conflict of interest issue is of serious concern to the Court.
131. The assets of the Estate are few and primarily comprise the Hohola residence, which must have considerable market value, and the Estate’s minority shareholding in Amazon, which has little or no present value but which shareholding has potential substantial value if the company’s appeal in SCM No. 57 of 2019 or its out-of-court negotiations with Bootless View Estate Ltd were to be successful, this being a somewhat unlikely prospect at this juncture, according to Mr Popuna.
132. Although the asset situation of the Estate is relatively straightforward, there are nevertheless complex issues which will confront whoever obtains grant of administration from the Court in these proceedings. A major issue in the Estate is the resolution of Grace’s resistance to Michael Nari being considered a child of the deceased. If Michael Nari is lawfully entitled to be recognized as a child of the deceased, it follows that Michael will be entitled to participate in that two-thirds of the Estate which must, pursuant to s.84(1)(i) of the WPA Act, be shared equally between all children of the deceased, not just between Grace’s own five adult children and Nancy Puki’s two children Solomon and Synthia. Another issue is whether Grace is prepared to acknowledge that she is legally required under ss. 81(2) and 84(1) of the WPA Act to share one-third of the Estate with Nancy Puki. A further thorny issue is the future of the Hohola residence. Is the Hohola residence currently occupied by Grace and certain members of her family to be sold and the proceeds of sale applied by the administrator in payment of the various shares in the Estate which the entitled beneficiaries can expect to receive under the rules of intestacy and which I have already outlined? I find that all of these issues would place Grace in a very real conflict of interest situation if she were to be appointed administrator.
133. Grace has questioned the impartiality of the Office of the Public Trustee in its administration of the Estate to date. Grace states in her affidavit filed on 31 January 2023 that one of the issues which would assist her to address if she were to be granted administration of the Estate is the Public Trustee’s directorship in Amazon. Grace deposes at paragraph 35(e) of her affidavit:

“ 35 With the LOA granted to me it should assist me to do the following:

...

(e) To put the Public Trustee on notice to account of all their questionable actions, dealings and transaction[s] in regard to the Estate of my late husband, Paul Nari as the Defendant Public Trustee has vested in[terest in being] a Director of Amazon Realty and has created a conflict of interest situation and is not honest and transparent in temporary custody of the estate of my late husband, Paul Nari.”

134. However, Mr Popuna has refuted Grace’s allegation that he has been placed in a conflict of interest situation by his having been appointed as a director of Amazon. Mr Popuna asserts that he was appointed as a director of Amazon with the consent of the other directors of that company so that he could represent the three minority shareholders on the board of Amazon, namely the estate of the late Paul Nari (this Estate, as owner of 10% shares in Amazon), the estate of the late Kakau Biribudo (as holder of 9.6% of the shares in Amazon) and the estate of the late Kajeeman Ghotane (as holder of 0.4% of the shares in Amazon).
135. I am satisfied that there is no evidence before this Court of any conflict of interest on the part of Mr Popuna by reason of his being a director of Amazon. To the contrary, by being a director of Amazon, and now recognised by the Registrar of Companies as holding 10% of the shares in Amazon, Mr Popuna has by his affidavit filed in these proceedings on 3 February 2023 declared his interest as holding those shares in trust for the Estate. Section 72 of the Companies Act 1997 prohibits notice of any trust being entered on the share register of a company. In my view, Mr Popuna as Acting Public Trustee has taken the steps necessary to protect Estate’s shareholding in Amazon. Mr Popuna has also taken the steps necessary to protect the shareholdings in Amazon of two other unrelated intestate estates. There is no evidence before the Court to suggest that in doing so, Mr Popuna has placed himself in any conflict of interest situation. By taking the steps he has to hold the Estate’s shares in Amazon in trust for the Estate, Mr Popuna has acted properly and in good faith. He is well aware of the fiduciary duty he owes to the Estate in respect of the Estate’s 10% shareholding in Amazon which he holds in trust, as is evidenced by the matters he has deposed to in his affidavit filed on 3 February 2023.
136. I accordingly reject Grace’s allegation that Mr Popuna as Acting Public Trustee has placed himself in a conflict of interest situation by virtue of his directorship in Amazon and/or his holding of 10% of the shares in Amazon in trust for the Estate. The fact that those shares are at present virtually worthless unless Amazon can succeed in its appeal in SC No. 57 of 2019 or negotiate a substantial settlement with Bootless View Estate Ltd is irrelevant to Grace’s baseless allegation regarding any conflict of interest on the part of Mr Popuna.
137. I turn now to Mr Popuna’s contention for the Office of the Public Trustee that it would be Grace who would be in a conflict of interest situation if she were to be granted administration of the Estate.
138. It is apparent on the evidence adduced for both parties that the Office of the Public Trustee was not officially notified by Michael Nari of his claim to be the purported firstborn son of the deceased until after the Public Trustee’s notice of intended application for grant of administration was published in the Post-Courier newspaper on 31 January 2023. I say this because on 16 February 2023 Michael Nari filed, in person, a notice of motion seeking joinder in these proceedings. His notice of motion was supported by his affidavit filed the same date in which he deposed that he is “the surviving son of late Paul Nari from his first wife” and that Grace was the deceased’s second wife. This motion by Michael Nari was dismissed for cause by the Court on 15 May 2023 because these proceedings relate to contested applications for grant of administration, and Michael Nari was not seeking to apply for administration of the Estate for himself but instead to bring his claim to entitlement in the Estate to the attention of the Court.
139. However, it is clear from Grace’s evidence that several months prior to the Public Trustee’s publication of notice of intended application for grant of administration on 31 January 2023, Grace was at least aware of the existence of Michael Nari. Grace deposes at paragraphs 18 to 20 of her affidavit filed on 31 January 2023:

“ 18. The Public Curator call[ed] me to his office in Dec 2022 and showed me a court order Not to interfere on the land at Gereka we occupy from a Mr Michael Nari. I knew nothing about [it] and wasn’t given a copy as he said it wasn’t necessary.

19. The Public Curator indicated not knowing this person nor any other possible beneficiaries of the late Paul Nari so we agreed to have a meeting at his office that will bring everyone so that we could identify this person. I brought all my five adult children for the very first time to the Public Curator so that we all would identify the strange person claiming to be one Mr Michael Nari.

20. When I brought all my children, Michael Nari was not present but we sighted another person at the reception earlier at the office of the Public Curator running away and my sons tried to stop hm but he fled in a moving vehicle. The Public Curator may have some knowledge about this person and other people claiming to be beneficiaries as we have no clues to all these people and happenings pretending to be the children of the late Paul Nari.”

140. When the contested two applications of Grace and the Public Trustee were heard by the Court on 6 July 2023, no express mention of Michael Nari as a potential entitled beneficiary in the Estate was made by Mr Wally as counsel for Grace. An oblique but non-specific reference to other possible beneficiaries was made by Mr Wally when he said at page 6 of his written submission:

“ In the absence of other interested and legitimate beneficiaries applying for a LOA, [Grace]... is a fit and proper person to administer the Estate of late husband, Paul Nari deceased for and on behalf of them as [and] when they show up and register their claim.”

141. In contrast, Mr Popuna as Acting Public Trustee was at pains to point out to the Court at the substantive hearing that, as deposed to by him at paragraph 9 of his affidavit filed on 5 July 2023, “one of the sons filed to be party to the proceeding is Michael Nari, Ct Doc No. 51 in the proceeding WPA No. 52 of 2016 whom we have to administratively deal with including others.”
142. It is clear on the evidence that Grace has had no wish to acknowledge that Michael Nari is a potential entitled beneficiary in the Estate. It may well be that Michael Nari can prove his claim to be the firstborn son of the deceased by DNA testing or by some other means should Grace continue to not acknowledge his entitlement to share in the distribution of the Estate. That is a matter for the future. It is not in issue in these proceedings. What is in issue is whether Michael Nari’s claim to be so entitled has created a conflict of interest situation for Grace, as contended for the Office of the Public Trustee.
143. In Lang v Wagun (2009) N3993, the second of two cases involving the same parties, Cannings J said this at paragraph 10, in connection with the first plaintiff who was seeking appointment of herself as administrator of her late husband’s estate:

“ It is not a good idea to appoint Mrs Lang as administrator of the estate. She is likely to be the primary beneficiary. Under Section 84 of the [WPA Act] the widow of a man who dies intestate with children is generally entitled to one-third of the estate. Mrs Lang would be in a conflict of interest situation in the event that other persons wish to claim an interest in the estate. Mrs Lang claims to have had a statutory marriage with Mr Lang. However, it is acknowledged in the evidence that Mr Lang had a second, de facto, wife in addition to Mrs Lang; and it is likely that that lady is claiming an interest in the estate. It is much better than an independent person be appointed as administrator.”

144. As there was evidence in the second of the Lang v Wagun cases that a prior Public Trustee (not Mr Popuna) had failed to properly administer the estate of the late Mr Lang after being granted administration by the Registrar of the Court in an uncontested application six years before, Cannings J determined that the most appropriate person to take the place of the Public Trustee to administer the estate, which was complex, was a registered liquidator to be appointed by the Registrar, not Mrs Lang as first wife of her late husband.
145. The circumstances of the present case involving the Estate of the late Paul Nari bear some resemblance to the facts in Lang v Wagun. Here there are two mothers of children who it has been asserted are the surviving wives of their respective customary marriages to the deceased, except that Grace has thus far declined to affirmatively acknowledge Nancy Puki as being the surviving second wife. Grace has, however, acknowledged that the deceased had two children named Solomon and Synthia, whom Grace calls “illegitimate”. But irrespective of whether Nancy Puki’s relationship with the deceased can be categorised as de facto or as a result of customary marriage, by operation of s.81(1) and s.84(1)(i) of the WPA Act Nancy’s adult children Solomon and Synthia are already legally entitled beneficiaries in the Estate. If Nancy is to continue to maintain, through her son Solomon, that she was the wife of the deceased by customary marriage, that is a matter for proof should Grace continue to deny this, possibly before this Court in future proceedings. The same applies in respect of Michael Nari’s claim to be the firstborn son of the deceased by the late Teresa Puio.
146. In view of the different family scenarios which have emerged from the domestic life of the deceased following his death, and in view of Grace’s own evidence before this Court, it is transparently obvious that Grace genuinely disputes the claim of Michael Nari to his entitlement to share in the distribution of the Estate. The situation is not so clear regarding Grace’s attitude towards the claim that has been made for Nancy Puki. However, even if Grace were to change her mind and acknowledge Nancy Puki’s claim to entitlement to share one-third of the net Estate with Grace, resulting in them each having an interest to the extent of one-sixth of the net value of the Estate, Grace is unlikely to ever concede that Michael Nari is an entitled beneficiary in the Estate. I surmise that the toxic relationship which has built up between Grace and Michael Nari is unlikely to resolve itself, even if there were to be compelling proof of Michael Nari’s biological connection to the deceased.
147. On the other hand, the Public Trustee has a far better prospect of being able to deal with resolution of the claims of Michael Nari and, if still in issue, the claim of Nancy Puki, in an unbiased and impartial manner. Statutory provision exists in s.34 of the Public Trustee Act for decisions taken by the Public Trustee to admit or refuse claims of entitlement by claimants such as Michael Nari and Nancy Puki to be challenged in Court by persons aggrieved by those decisions, especially if the persons aggrieved in this case were to be Michael Nari or Grace or indeed anyone else claiming to have an interest in the Estate.
148. Section 34 of the Public Trustee Act provides:

34. Complaints against Public Trustee

(1) A person interested as creditor, next of kin, or otherwise in the estate of a deceased person that the Public Trustee is administering under this Act, may—

(a) on the neglect or refusal of the Public Trustee to do any act in relation to the administration of the estate; or

(b) on the Public Trustee’s doing, or threatening to do, any act in breach of his duty with reference to the estate,

apply on affidavit to the National Court or a Judge—

(c) for an order calling on the Public Trustee to show cause before the Court or a Judge, on a day not less than two days after the service of the order on him, why he should not do or abstain from doing the act; and

(d) for an interim order in the nature of an injunction, if warranted by the facts of the case.

(2) An order under Subsection (1) may be granted subject to such conditions as to security for costs as the National Court or a Judge imposes.

(3) On the hearing of a complaint under Subsection (1), the National Court or a Judge may—

(a) receive proof of the matters in relation to the complaint orally or by affidavit; and

(b) make such order as the circumstances of the case require ...

(4) An order under Subsection (3)—

(a) has the same effect; and

(b) is enforceable by the same process,

as if it had been made by the National Court in a suit between the parties to the complaint.

149. It follows that if Grace were to be informed by Mr Popuna as Acting Public Trustee of his intention to accept as valid Michael Nari’s claim to be an entitled beneficiary, Grace could then apply to this Court under s.34(1) of the Act for an order calling on the Acting Public Trustee to show cause why he should not abstain from making that decision. Grace could at the same time apply for an interim injunction to restrain the Acting Public Trustee from making such a decision. The Court would then hear Grace’s complaint and make such order under s.34(3)(b) of the Act “as the circumstances of the case require”.
150. The corollary to this situation is that if Mr Popuna as Acting Public Trustee were to decide to reject Michael Nari’s claim to entitlement, perhaps because Michael Nari had refused or declined to produce conclusive medical evidence to establish his biological connection to the deceased through DNA testing, Michael Nari could then avail himself of the same complaint procedure under s.34(1) of the Act to challenge the Acting Public Trustee’s decision to reject his claim and all parties would then await the Court’s own decision.
151. In Angui v Wagun (2011) N4194 the plaintiffs were aggrieved by a decision made by a former Public Trustee regarding the distribution of assets in a deceased estate. The plaintiffs applied to the National Court for judicial review of the Public Trustee’s decision. Cannings J held that the plaintiffs’ application for judicial review was misconceived for the reason that, among others, the plaintiffs had not exhausted their statutory remedies under s.34 of the Public Trustee Act.

CONCLUSION

152. In the result, I find that precedence must be given by the Court to the Public Trustee’s application for grant of administration. I have had regard to Grace’s limited financial circumstances to be able to administer the Estate without any demonstrable income stream being generated by the Estate itself or from the Estate’s shareholding in Amazon. This would impact on the capacity of Grace to be able to financially provide for the expenses of dealing with the many issues that will require resolution before the Estate is ready for distribution.
153. More importantly, I am not satisfied that if Grace were to be granted administration of the Estate she would be able to do so in a manner which would impartially protect the rights of all persons claiming to be entitled to share in the distribution of the net Estate. Grace is herself an entitled beneficiary. Grace’s five adult children are all entitled beneficiaries. That scenario in itself places Grace in an immediate conflict of interest situation vis-à-vis all other potential beneficiaries in the Estate if she were to be the Court-appointed administrator.
154. On Grace’s own evidence, it is clear that Solomon Nari and his sister Synthia Nari are entitled beneficiaries. As for Nancy Puki, Solomon and Synthia’s mother, if more proof were to be forthcoming to establish the assertion that has been made for Nancy that she was married to the deceased according to custom, then Nancy would be beneficially entitled to one-sixth of the net Estate.
155. There is also the highly contentious issue as to whether Michael Nari is an entitled beneficiary in the Estate. If Grace were to continue to deny Michael Nari’s claim and if Michael were to be able to prove by DNA testing or by some other means that he does have biological connection to the deceased and is therefore a “next of kin”, how would Grace cope with that situation if she were to be the Court-appointed administrator? The hostile relationship which exists between Grace and Michael Nari is such that it defies common sense to predict that Grace would be able to deal with Michael’s claim to be an entitled beneficiary in the Estate with the same degree of equanimity which the Office of the Public Trustee in the person of Acting Public Trustee Mr Popuna could give to this critical issue.
156. After careful consideration of the evidence presented for both parties, I am satisfied that the circumstances of this case are such that the Public Trustee, in its statutory sense of being a body corporate, is the more capable and impartial of the two applicants. Applying the factors I have already outlined which the Court should consider when faced with competing applications for grant of probate, I have determined that formal administration of the Estate of the late Paul Nari is to be granted to the Public Trustee. An order for grant of administration of the Estate will accordingly be made in favour of the Public Trustee.
157. However, I am conscious that grant of administration of the Estate to the Public Trustee will not resolve the serious matters in issue which I have mentioned. I will therefore issue orders under s.155(4) of the Constitution, as was done by Cannings J in Angui v Wagun, which are designed to promote a timely, fair and peaceful resolution of remaining matters in dispute in the Estate. The Public Trustee will be required by those orders to make a proposed decision as to all of those persons who are recognized by the Public Trustee as being the legally entitled beneficiaries in the Estate, having regard to the observations made by the Court, so that any of the parties aggrieved by that decision of the Public Trustee can avail themselves of the complaint procedure under s.34 of the Public Trustee Act to seek redress from this Court.
158. Costs are in the discretion of the Court. As I consider that each party had proper cause to apply to the Court in this matter for grant of administration of the Estate but in view of the obvious economic disparity between the parties, I rule that each party is to pay its own costs.

ORDER

159. The formal terms of the Order of the Court are these:

(1) Letters of administration of the intestate estate of the late Paul Nari are granted to the Public Trustee.

(2) The requirement for an administration bond is dispensed with.

(3) The Public Trustee shall forthwith file letters of administration in a form approved by the Registrar for signing and sealing by the Registrar.

(4) The question of who all of the entitled beneficiaries of the estate of the late Paul Nari are is to be fully considered by the Public Trustee within one month after the date of this order in light of the observations of the National Court made in its judgment delivered today.

(5) The Public Trustee shall no later than Friday 1 September 2023 give written notice to all interested persons of their right to be heard by the Public Trustee on the question, and the Public Trustee shall in the ensuing one month deliberate on the material and submissions of all such persons who respond.

(6) The Public Trustee shall no later than Monday 2 October 2023 inform all interested persons in writing of the Public Trustee’s proposed decision on the question of who all of the said entitled beneficiaries are, after which time any person aggrieved by the Public Trustee’s proposed decision may no later than Wednesday 1 November 2023 apply to the National Court or a Judge in these proceedings by notice of motion with affidavit in support seeking relief under Section 34(1) of the Public Trustee Act.

(7) If an application by an aggrieved person is made to the National Court or a Judge in accordance with term (6) of this Order, the application will be dealt with on its merits by the Court or the Judge, who may make such order or orders as the case may require.

(8) If no application has been made by an aggrieved person to the National Court or a Judge in accordance with term (6) of this Order by Wednesday 1 November 2023, the Public Trustee shall no later than Friday 10 November 2023 apply to the National Court or a Judge in these proceedings by notice of motion with affidavit in support seeking ratification of the Public Trustee’s proposed decision.

(9) Each party is to bear their own costs of and incidental to these proceedings.

(10) The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.

Ordered accordingly.

HBest Wally Lawyers: Lawyers for the Plaintiff
Public Trustee Inhouse Counsel: Lawyers for the Defendant/ Cross-Claimant

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^[1] Section 22A was inserted in the District Courts Act Chapter 40 by s.6 of the District Courts (Amendment) Act 2000 (Act No. 8 of 2000).

^[2] Nevill’s Trusts Wills And Administration (1971) Butterworths at p. 251.
^[3] Court document number 45.
^[4] Court document number 69.