Death does not freeze land. Part XII of the Land Registration Act provides for transmission — the passing of registered land by operation of law on death or insolvency, rather than by a voluntary transfer.
Section 117 — the definitions
(a) the executor of the will of the deceased; or
(b) the administrator of the estate of the deceased; or
(c) subject to the granting of an order to administer — the Public Curator.
The Act also defines “probate” (probate of the will), “letters of administration” (letters of administration of the estate) and “order to administer” (an order under section 10 of the Public Curator Act to administer the estate).
The Act refers to the Public Curator. That office is now the Public Trustee, following the consolidation of the Public Curator Act. The function is the same: administering estates, including where there is no will and no willing administrator.
Section 118 — the application to be registered
Where a mortgage, charge or lease — other than a State lease — is transmitted in consequence of the death of the registered proprietor, the personal representative shall lodge with the Registrar:
- (a) a written application from the personal representative to be registered as proprietor of that property; and
- (b) an office copy of the probate, letters of administration or order to administer, as the case may be.
Where such an application is made, the Registrar shall register it, and on registration the personal representative becomes the registered proprietor.
Section 118(1) is expressed to be subject to section 120, and the Part contains further provisions on the position of a person registered as proprietor by transmission.
Transmission is not a transfer
| Transfer (Part V) | Transmission (Part XII) | |
|---|---|---|
| Trigger | The proprietor’s voluntary act | Operation of law — death or insolvency |
| Instrument | Transfer in the approved form, stating consideration | Written application plus office copy of probate, letters or order |
| Who signs | The proprietor | The personal representative (or trustee in insolvency) |
| Land Act approval | Required — it is a controlled dealing | Not a controlled dealing — transmission is expressly excluded |
Section 128(1) of the Land Act 1996 defines a “controlled dealing” as a disposition of a leasehold estate but not including a transmission — and defines “transmission” as the acquisition of title consequent on the death or insolvency of the owner.
So the personal representative does not need Ministerial approval to be registered. A later sale by the estate to a beneficiary or a buyer does.
Division 1 — insolvency
Division 1 of Part XII deals with transmission on insolvency, where the registered proprietor’s interest passes to the trustee for the benefit of creditors. It operates alongside the Insolvency Act (Chapter 253). As with death, it is a transmission by operation of law rather than a dealing by the proprietor.
Getting the land to the beneficiaries
Registration of the personal representative is a step, not the destination. The representative holds the land in that capacity, to administer the estate. The land reaches the beneficiaries by a subsequent dealing — and that dealing:
- is a transfer under Part V, requiring the approved form and the true consideration; and
- where it is a State lease with more than five years to run, is a controlled dealing requiring Ministerial approval — which must be withheld unless rent is paid to date and the improvement conditions have been performed.
An estate holding a State lease must keep paying rent and meeting the lease conditions. Otherwise the lease can be forfeited during the administration — and the beneficiaries inherit nothing. Deal with rent and conditions early, and remember that section 122(4) of the Land Act requires notices to be served on everyone known to have or claim an interest.
Custom, wills and customary land
Two different systems can be in play in the same estate:
- Registered land passes under the will or the rules of intestacy, administered through probate or letters of administration, and recorded by transmission under this Part. The Wills, Probate and Administration Act (Chapter 291) governs the succession.
- Customary land generally does not pass by will at all. It devolves according to the custom of the place, and disputes go to the Land Courts, not to the probate jurisdiction. See Re Sannga, Deceased [1983] PGSC 20; [1983] PNGLR 142.
Practical steps for a personal representative
- Obtain the grant — probate, letters of administration, or an order to administer.
- Search the title and identify every registered interest, including mortgages and caveats.
- Lodge the written application with an office copy of the grant.
- Keep the lease alive — pay rent, address conditions, respond to any notice.
- Then transfer to the beneficiaries, obtaining Ministerial approval where required.
- Consider a caveat if there is any risk of a dealing while the estate is being administered.
Sources
- Land Registration Act (Chapter 191) — ss 117–120; Part XII
- Land Act 1996 — ss 122, 128, 129
- Wills, Probate and Administration Act (Chapter 291)
- Insolvency Act (Chapter 253)
- Re Sannga, Deceased [1983] PGSC 20; [1983] PNGLR 142
Before relying on anything here, read the current text of the Land Act 1996 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.