Order 19 of the National Court Rules 1983 is headed Probate Rules. It operates alongside the Wills, Probate and Administration Act 1966, which Rule 1 defines simply as “the Act”.
Rule 1
“Administration” includes administration with the will annexed, administration de bonis non and limited and special administration.
“Administrator” means a person to whom administration is granted.
“Estate” includes real estate and personal estate.
“Grant” means a grant of probate or administration.
“Resealing” means sealing, under Section 118 of the Act, probate or letters of administration.
“Will” includes codicil — and words in this Order have the same meaning as they have in the Act.
Probate is granted to the executor named in a will. Administration is granted where there is no executor able and willing to act — including where there is no will at all. See letters of administration.
Rules 7 to 9
To proceedings for a grant or resealing where (a) there is no defendant; and (b) no person is cited to see the proceedings.
(1) Proceedings for the grant or resealing shall be commenced by summons in Form 70.
(2) Notwithstanding Order 6 Rule 7(1), the address for service of the plaintiff need not be that of a place within 15 km of the Registry but shall be that of a place within Papua New Guinea.
(1) The proceedings may be heard (a) in the absence of the public; and (b) without the appearance before the Court of any person.
(2) The proceedings shall be heard without an appointment being obtained for the hearing.
(3) Order 4 Division 4 (originating summons) does not apply.
Rule 9(3) expressly disapplies the originating summons Division. A non-contentious probate application is a paper process: no appearance, no appointment, and the file is dealt with in the ordinary course.
Rule 8(2) relaxes the usual 15-kilometre address for service requirement to anywhere in Papua New Guinea — a sensible allowance for executors in the provinces.
Rule 5
Subject to section 42 of the Act, the Registrar may exercise the powers of the Court in and about —
(a) proceedings to which Division 3 applies — including making a grant on presumption of death and giving leave in the grant to distribute the estate;
(b) granting leave to creditors to commence proceedings for a grant of administration;
(c) assigning guardians of minors;
(d) settling and issuing citations;
(e) appointing next friends or guardians at law of disabled persons;
(f) passing the accounts of executors, administrators and trustees, including allowing commission for their pains and trouble and costs in connection with the accounts.
Because Division 3 covers every uncontested application, the great majority of probate work is done by the Registrar rather than by a Judge. That is why Rule 3 gives special heading and backsheet requirements for documents in proceedings where the powers of the Court may be exercised by the Registrar.
Rule 10
(1) Notice shall be published in one Port Moresby daily newspaper.
(2) It shall state the date or dates of any will and each codicil (if any) sought to be proved or where the document bears no date a statement of this fact and of the approximate date, if known.
(3) Where it is intended to apply for dispensing with an administration bond, or with one or both sureties, or for reduction of the penalty of the bond, the notice shall require creditors to send in their claims.
(4) The Court may require further advertisement.
(5) The forms are Forms 71, 72 or 73, as the case requires.
The notice is of an intended application, so it precedes the summons. Proof of publication is then required: Rule 24(1)(c) calls for an affidavit in Form 78 deposing to publication of the notice of intention to apply for probate. See the documents required.
Rules 11 to 13
Rule 11 — delay. Where proceedings for a grant are not commenced until six months or more after the death of the deceased and are the first proceedings for a grant, the plaintiff shall file an affidavit explaining the delay.
Rule 12 — domicile out of Papua New Guinea. The Court may require evidence of the domicile of the deceased, the requirements of the law of the domicile as to the validity of any will, and the law of the domicile as to the persons entitled in distribution of the estate.
Rule 13 — identity. The Court may require proof of the identity of the deceased or of the plaintiff.
Under Rule 24(1)(c)(iv), where two years or more have elapsed since the death of the deceased, the Form 78 affidavit must state whether any prior application for any grant or resealing has been made in connection with the estate.
If the estate includes assets abroad, or the deceased died overseas, consider resealing. If the application is opposed, see caveats and challenging a will.
Sources
- National Court Rules 1983 — O 4 Div 4; O 6 r 7; O 19 rr 1–13, 24, Divs 1–3; Forms 70–73, 76–79
The Wills, Probate and Administration Act 1966 is not available on PacLII.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.