Rule 24 of Order 19 of the National Court Rules 1983 is headed Evidence and documents in application for probate. It is a checklist.
What must be filed
| Document | Form | Source |
|---|---|---|
| Summons commencing the proceedings | Form 70 | r 8(1) |
| Affidavit of the death of the testator | Form 76 | r 24(1)(a) |
| Affidavit as to the will and the executor | Form 77 | r 24(1)(b) |
| Affidavit as to publication, searches and caveats | Form 78 | r 24(1)(c) |
| Affidavit of the plaintiff’s means of identifying the will | — | r 24(6) |
| The will, marked by the plaintiff and the person before whom the affidavit is sworn | — | r 24(6) |
| Oath in writing of the plaintiff | Form 79 | r 24(7) |
| The published notice of intended application | Form 71, 72 or 73 | r 10 |
Rule 24(1)(b)
- the full residential address of the plaintiff;
- that the testator has left a will and the date of the will;
- the names of the subscribing witnesses to the will;
- whether the deceased married after making the will;
- that the deceased left an estate within Papua New Guinea;
- that the plaintiff is over the age of 21 years;
- where an executor has died or has renounced probate — the date of his death or renunciation.
Marriage after the making of a will can affect its validity under the Wills, Probate and Administration Act 1966. The Rule requires the point to be addressed on oath, so establish the dates of the will and of any marriage before drafting.
Rule 24(1)(c)
(i) publication of the notice of intention to apply for probate;
(ii) search for a will of the testator deposited in the Registry;
(iii) whether a caveat relating to the application has been lodged;
(iv) where two years or more have elapsed since the death of the deceased — whether any prior application for any grant or resealing has been made in connection with the estate.
Rule 24(6)
An affidavit of the plaintiff stating his means of identifying the will shall be filed and the will shall be marked by him and by the person before whom the affidavit is sworn.
Both the plaintiff and the person before whom the affidavit is sworn must mark the will itself. That is what links the document produced to the Court with the document described in the affidavit.
Never send the original will unmarked, and never rely on a copy where the original exists.
Rule 24(2) to (5)
(2) Where an executor has renounced probate, evidence of the renunciation shall be furnished, and where the renunciation has been signed by the executor, the renunciation shall be filed.
(3) Where an executor has died, evidence of his death shall be furnished.
(4) Where an executor is not joining in the application and leave is sought to be reserved to him to come in and apply for probate, evidence shall be furnished that he has been served, not less than 14 days before the proceedings for grant are commenced, with notice of the intended proceedings, or that he is not in Papua New Guinea, or that he is a minor.
(5) That notice may be served personally or by registered post, obtaining from the postal authorities a written acknowledgment, purporting to be signed by him, of receipt of the registered article.
Rule 14 of Order 19 deals with renunciation generally. An executor who does not wish to act should renounce formally in writing, so that the renunciation can be filed under Rule 24(2).
Where no executor is able and willing to act, the application becomes one for administration with the will annexed under Rule 26.
Assembling the application
- Obtain and inspect the original will. Everything else depends on what the document actually says and what condition it is in.
- Fix the dates — of death, of the will and any codicil, and of any marriage after the will was made. Rule 10(2) requires the published notice to state the date or dates of any will and each codicil (if any), or, where undated, a statement of this fact and of the approximate date, if known.
- Deal with the other executors. Where one is not joining and leave is to be reserved, notice must be served not less than 14 days before the proceedings for grant are commenced. That deadline governs the whole timetable.
- Publish the notice in Form 71, 72 or 73 in one Port Moresby daily newspaper, and keep the page.
- Carry out the searches — for a will deposited in the Registry, and for caveats.
- Swear the affidavits and mark the will, then file with the summons in Form 70.
Delay — Rule 11: where proceedings are not commenced until six months or more after the death and are the first proceedings for a grant, the plaintiff shall file an affidavit explaining the delay.
Foreign domicile — Rule 12: where the deceased was domiciled outside Papua New Guinea, the Court may require evidence of the domicile, of the requirements of the law of the domicile as to the validity of any will, and of the law of the domicile as to the persons entitled in distribution. See resealing.
Rules 15 to 23
Rule 15 — will not sufficiently attested.
Rule 16 — testator’s knowledge and approval of contents.
Rule 17 — further evidence as to execution.
Rule 18 — date of execution.
Rule 19 — interlineations, obliterations and alterations.
Rule 20 — documents referred to or attached.
Rule 21 — part of will paper torn off or cut off.
Rule 22 — burning, tearing or other sign of revocation.
Rule 23 — inoperative will.
Rules 19, 21 and 22 all turn on the physical condition of the will — alterations, missing portions, burning or tearing. Each requires evidence explaining it.
Examine the original document carefully at the outset. A mark noticed by the Registrar after filing means a supplementary affidavit and delay; and by Rule 24(8) the Court may require further evidence to be furnished, further documents to be filed, and notices to be given.
Sources
- National Court Rules 1983 — O 19 rr 8, 10, 14–24, 26; 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.