N11297
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 236 OF 2021

BETWEEN:
YOUNG IRVING DICKSON, as next of Kin and Beneficiary of the Estate of LATE RONALD IRVING DICKSON, DECEASED
Plaintiff

AND:
FINLAY MATHESON, as appointed Administrator and Trustee over the Estate of LAE RONALD IRVING DICKSON, DECEASED
First Defendant

AND:
GOIYE GILENG, as appointed Administrator and Trustee over the Estate of LATE RONALD IRVING DICKSON, DECEASED
Second Defendant

LAE:   DINGAKE J
14 JUNE 2024; 06 MAY 2025

WILLS  PROBATE AND ADMINISTRATION – deceased estate – plaintiff seeks orders for revocation of grant of probate to defendants – grounds of being not ‘fit and proper person’ to administer deceased estate – plaintiff seeks orders for administration to be granted to him as he is ‘fit and proper person’ – orders for administration to be granted to public curator as an alternative – first defendant is not a ‘fit and proper person’ to be granted administration – second defendant does not have time to be executor of deceased estate – grant of probate to defendants revoked – plaintiff granted administration of deceased estate

Case cited
Hengebe Haluya (2022) N8257

Counsel
Mr. Terry Berem for the plaintiff
Mr. Rakkap Wak for the defendants

1.	DINGAKE J: INTRODUCTION:  This is my Judgement with respect to a claim (Amended Statement of Claim filed on the 10th of August 2021) brought by the Plaintiff.

2.	In the said claim the Plaintiff seeks the following relief:
a)	A declaration that the Defendants are not fit and proper persons to administer the estate of the deceased.
b)	An Order for the revocation of the grant of probate to the Defendants.
c)	An Order for administration to be granted to the Plaintiff as a fit and proper person.
d)	Alternatively, administration of the estate of the deceased be granted to the Public Curator of Papua New Guinea as the Official Trustee.
e)	Costs incidental to and arising out of the proceeding on a party/party basis.
3.	The primary reason advanced by the Plaintiff for bringing this suit is that the First and Second Defendants are not fit and proper persons to administer the estate of the late Ronald Irving Dickson (“the deceased”).

4.	It bears stating that on the 11th of May 2021, when my brother Dowa J granted probate to the First Defendant, he specifically granted leave to the Respondent or any persons aggrieved by the Orders of the Court, and who intends to apply for the revocation of the grant to do so within thirty (30) days of the granting of the Order.

5.	It would seem that these proceedings are filed as a consequence of the Order.

6.	The trial in this matter was conducted on the 14th and 21st of May 2024, by way of Affidavits that were tendered by consent and marked as exhibits by the Court.
Affidavits
7.	The Plaintiff relied on the following admitted Affidavits:
a)	Affidavit of Young Irving Dickson, sworn and filed on 25 June 2021 (Doc No.2) – Exhibit 1.
b)	Affidavit of Tracey Dickson, sworn and filed on 25 June 2021 (Doc No.3) – Exhibit 2.
c)	Affidavit of Young Irving Dickson, sworn on 22 September 2021 and filed 23 September 2021 (Doc No. 13 – Exhibit 3.

8.	The Defendants relied on the following admitted evidence:

a)	Goiye Gileng sworn 20th October 2021, and filed 21st October 2021 (Doc No.19);
b)	Goiye Gileng sworn and filed 2nd February 2024 (Doc No.75);
c)	Finlay Matheson sworn 24th November 2022 and filed 25 November 2022 (Doc No.45); and 
d)	Finlay Matheson sworn 9th October 2023 and filed 16th October 2023 (Doc No.65).

Common Cause Factors
9.	It is common cause that on the 26th of July 2024, the deceased executed a Will in which he appointed the First Defendant as the Executor and Trustee and the Second Defendant as the Alternate Executor and Trustee.  He passed away on the 13th of July 2017.

10.	Subsequently, the deceased wife, Bathleen Dickson, passed away on the 24th of November 2020.

11.	The Plaintiff is the only biological son of the deceased and a beneficiary under the Will.

12.	The other beneficiaries are as follows:

a)	Bathleen Dickson (Wife – now deceased).
b)	Kylie Dickson (Daughter)
c)	Linda Dickson (Daughter)
d)	Tracy Dickson (Daughter)

13.	It is also matter of record that on the 9th of September 2022, Dowa J, inter alia, granted injunctive orders against the Defendants collectively, and severally, and/or with their agents, servants and associates, namely George Sellar, the professionals Real Estate Limited, and whosoever acting on their instructions, from dealing with any remaining assets and properties of the deceased estate, pending the hearing of the substantive matter. 

14.	On the 15th August 2021, the First Defendant appointed George Sellar to expediate the administration of the estate and related duties on his behalf while he was abroad.

15.	 The Plaintiff submits that he has standing to apply for revocation of the grant of probate and the Defendants say he does not.

16.	The Plaintiff submits that he has standing because:
a)	He is the only biological son of the deceased.
b)	He is the next of kin.
c)	He is named as a beneficiary in the Will.
17.	The First Defendant says that the Plaintiff had no consent and authority to act for beneficiaries of the estate in circumstances where the beneficiaries are adults with no disabilities and or where the Plaintiff was substantially excluded from the Will except for the jet ski.

18.	 In my mind the issue of standing need not detain us.  The Plaintiff as the biological son and beneficiary under a Will gives him standing to bring this suit.  I do not think that the extent of his benefits under the Will compared to beneficiaries is a relevant factor in considering his standing.

19.	I turn to the submissions on the merits of the case.

20.	The Plaintiff argues that the First Defendant is unfit to carry out his functions for a number of reasons, that include the following:

a)	 That he is critically ill with diabetes and under close medical observation in Scotland.
b)	He last came to Lae, in Papua New Guinea, in November 2022, to attend his wife’s funeral.
c)	That the Defendants are not fit and proper persons to administer the estate of the deceased because of allegations that they have mismanaged

21.	 The First Defendant does not deny that he has a claim against the estate but contends that the debt would be subject to proof in the normal course when the creditors submit their claim.  He also says that it is his intention to appoint an independent and credible accounting firm to deal with creditors, including himself.

22.	The First Defendant also argues that he has fiduciary obligations vis-à-vis the estate and that being a creditor does not invalidate this appointment.  He argues that he is yet to perform executorial functions because of the Plaintiff, his late mother and siblings’ refusal to allow him to perform his duties.

23.	The Second Defendant denies the allegations directed at him.  He maintains that the First Defendant is the executor and must be allowed to do his job.  He also says that even if he was called upon to act as an Executor, he will decline because he does not have time and capacity to deal with the estate of the deceased.

Analysis of the Evidence

24.	Apart from the common cause facts alluded to above, it is important for this Court to closely analyse the evidence of the parties and make certain findings of fact that are material to answer the questions that have arisen for determination.

25.	It is clear from the Will that the Plaintiff was substantially excluded from the Will, except the bequeathal of jet ski.  In my mind that makes him a beneficiary.

26.	The Plaintiff has alleged in his supporting Affidavits that the First Defendant’s associate such as John Bedford Bray has been haunted by allegations of mismanagement of similar estates in Papua New Guinea and that a Warrant of Arrest of John Bedford Bray for misappropriation of funds totalling K126,000.00 was issued.  These allegations have not been denied by the First Defendant, in any significant manner or at all.

27.	On the evidence, it seems to me that the First Defendant as alleged by the Plaintiff is “critically ill with diabetes” and currently outside the country in Scotland and only came to the country in November 2022, to attend his wife’s funeral.  This may explain why he has appointed Mr Sellar, as earlier indicated to carry out his duties.

28.	My finding that the First Defendant is “critically ill” and has been outside the country for more than two (2) years (discounting being in the country in November 2022, to attend his wife’s funeral) is justified by the fact that same is not denied in the Affidavits he filed in support (Doc No.45 & 65).

The Law
 
29.	Section 65 of the Wills, Probate and Administration Act 1966 (“WPA Act”) provides the grounds upon which a grant of probate or letters of administration after being granted may be revoked. 

30.	  Section 65(1)(c ) of the WPA Act states:

“(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-
…
(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 proper 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.
…

31.	In the Estate of Hengebe Haluya (2020) N8257, the Court stated circumstances that my persuade the Court to revoke the grant of probate, such as the Executor or Administrator not being a fit and proper person and the Executor remaining outside the country for two (2) years.

32.	In the Estate of Hengebe Haluya (supra) the Court stated that:

“17	The circumstances in which the Court will revoke a grant of probate or administration are conveniently set out in Injia, et al, PNG, Civil Procedure in National Court, Colorcraft Ltd 2016 at pp.434-435, and these are:
6.	Where an executor or administrator is not a fit and proper person (whether because of a conflict of duty and interest or for other reasons)…”

33.	  In applying the law to the facts of this case, I am mindful that:

(1)	 Section 65 1(c) of the WPA Act, does not exclude or disqualify a creditor to be an Executor or Administrator.
(2)	That as a general rule, being a creditor or beneficiary is not perse a disqualification.
(3)	That the Court would generally respect the Will of the deceased.
(4)	That the Court can revoke the grant of probate if the Executor or Administrator is unfit, or some other grounds recognized by the Courts.
(5)	That the Court would not revoke the grant of probate – easily or lightly.

34.	In this case, my mind has been focused on Section 65 1(c) of WPA Act, especially the requirement of being “unfit”.  In this case, I do not consider that a single factor as a stand-alone consideration renders the First Defendant “unfit” within the meaning of Section 65 1(c ) of WPA Act.

35.	  I have considered that the deceased died in 2017, that in his Will, executed in 2015, he appointed the First Defendant as the Executor and the Second Defendant as the alternate.

36.	I have already found that the First Defendant is critically ill and living abroad.  Significantly, the First Defendant has been outside the country for over two (2) years.

37.	I do not think being a creditor per se disqualifies him from being an Executor.  However, being critically sick, living abroad and having been outside the country for over two (2) years, taking into account the time he was appointed, the delays that have already been occasioned by this litigation, the interests of the beneficiaries and creditors, that the estate be would up efficiently or speedily, the First Defendant’s health and absence for over two (2) years makes him “unfit” to be the Executor as per the wishes of the deceased.

38.	The Second Defendant was appointed alternate Executor in the event that the Defendant refuses or is otherwise unable to take up his appointment.  In my view, he would otherwise qualify to take over as an Executor, but on his evidence before me he has no time to do so.

39.	In the result this Court orders that:

(1)	A declaration that the First Defendant is not fit and proper person to administer the estate of the deceased.
(2)	A declaration that the Second Defendant who would otherwise qualify to replace the First Defendant has no time to be an Executor of the estate.
(3)	An Order for the revocation of the grant of probate to the Defendants.
(4)	An Order for administration to be granted to the Plaintiff as a fit and proper person.
(5)	Costs incidental to and arising out of the proceeding on a party/party basis to be paid by the Defendants, as agreed or taxed.
____________________________________________________________
Lawyers for the plaintiff:   Berem Lawyers		
Lawyers for the defendants:   Gileng & Co. Lawyers