How a will is challenged depends on one question: has a grant already been made?
Lodge a caveat
A person having an interest in an estate may lodge in the Registry a caveat in Form 96 requiring proof in solemn form of any will.
It shall state fully the nature of the interest of the caveator and an address for service, and where someone is known to be applying, a copy must be served on them within seven days of the lodging.
Rule 69 — where there is in force a caveat … proceedings for a grant or for resealing in the estate shall be commenced by writ of summons, and unless the Court otherwise directs, the caveator shall be a party.
Rule 67 — the caveator shall … be cited to see the proceedings where the plaintiff seeks to prove the will to which the caveat relates.
So a caveat converts a paper application into contested litigation. See caveats and citations.
On an application under Rule 68 the Court may order the caveat to cease to be in force where the evidence does not show (a) that the caveator has an interest in the estate or has a reasonable prospect of establishing such an interest, and (b) some matter occasioning doubts as to whether the grant ought to be made.
And under Rule 68(7) and (8) the Court may direct a caveator to commence proceedings, and order that if they do not do so within a fixed time the caveat shall cease to be in force. A caveat buys time to prepare a challenge; it is not the challenge.
Order 19 Division 6
Rule 34 — this Division applies to applications for a grant or resealing where (a) there is a defendant; or (b) a person is cited to see the proceedings.
Rule 35 — where there is a defendant the proceedings shall be commenced by writ of summons; where there is no defendant the proceedings shall be commenced by originating summons.
Rule 36 — Order 9 Rule 30 (judgement on admissions) does not apply to proceedings to which this Division applies.
In an ordinary action, an admission can produce judgment without a trial. In a contested probate matter it cannot. The validity of a will is not something the parties can settle between themselves by admission — the Court must be satisfied.
The same thinking underlies Rule 68(5), which disapplies summary disposal to proceedings for an order that a caveat cease to be in force.
What a challenge is about
Order 19 Rules 15 to 23 require extra evidence in nine situations, and they map onto the usual grounds of challenge —
Execution and attestation — Rule 15 (will not sufficiently attested), Rule 17 (further evidence as to execution), Rule 18 (date of execution).
Knowledge and approval — Rule 16 (testator’s knowledge and approval of contents).
The state of the document — Rule 19 (interlineations, obliterations and alterations), Rule 20 (documents referred to or attached), Rule 21 (part of will paper torn off or cut off).
Revocation — Rule 22 (burning, tearing or other sign of revocation), and the Form 77 requirement to state whether the deceased married after making the will.
Effect — Rule 23 (inoperative will).
Order 19 Division 7
Rule 42 — where there is a defendant, proceedings for revocation shall be commenced by a writ of summons.
Rule 39 — where there is no defendant, they shall be commenced by summons in Form 87.
Rule 40 — where there is no defendant the proceedings may be heard in the absence of the public and without the appearance before the Court of any person, and without an appointment being obtained.
Rule 41 — a draft minute of the order sought shall be lodged with the Registrar before any order is made on the summons; the order shall be entered, and may be entered at any time after the minute of it is signed.
Rule 37 — where proceedings for revocation have been commenced, the Court may, on the application of the plaintiff, or of its own motion, order the executor or administrator to deposit the grant in the Registry.
Rule 38 — in an urgent case the Court may, on the application of a person who intends to commence proceedings for revocation of a grant, order the executor or administrator to deposit the grant in the Registry to the same extent as if the applicant had commenced the proceedings.
Rule 38 is valuable: relief is available before the proceedings are on foot. Where there is a risk the estate will be dealt with on the strength of a grant that ought not to have issued, that is the provision to use.
Rules 43 and 44
(1) A party in proceedings may cross-claim for a grant or for resealing.
(2) Where notice of the intended application has not been published, the party shall within 30 days of filing the cross-claim, cause notice of the intended application to be published in the form required by Rule 10 — that is, in one Port Moresby daily newspaper.
(1) An application to intervene in proceedings for a grant shall be by motion on notice in the proceedings for an order that the person applying be added as a party.
(2) Before filing the notice of motion the person applying shall give notice of his intention to defend the proceedings.
A person cited to see proceedings may, except where he has lodged a caveat requiring proof in solemn form, simply include in his notice of appearance a statement that he elects to be a defendant under Rule 56(1) — and is then treated as having been served with the originating process on the day he was served with the citation.
A solemn-form caveator must instead apply for an order adding him as a party under Rule 56(3).
Sources
- National Court Rules 1983 — O 9 r 30; O 12 Div 4; O 19 rr 10, 15–24, 34–44, 56, 61, 67–69; Forms 77, 87, 96
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.