Many estates in Papua New Guinea have no will, and many have no obvious person willing or able to administer them. Registered land in those estates does not resolve itself, and the consequences of leaving it are severe.
Section 117 — three grants, one procedure
(a) the executor of the will of the deceased — where there is a will;
(b) the administrator of the estate — where there is no will, or no willing executor; or
(c) subject to the granting of an order to administer — the Public Curator.
The Act defines the corresponding documents: probate of the will; letters of administration of the estate; and an order to administer under section 10 of the Public Curator Act.
Whichever applies, the transmission procedure is the same: a written application to be registered as proprietor, plus an office copy of the grant.
The Act refers to the Public Curator. That office is now the Public Trustee. The function is unchanged: administering estates, including those nobody else will take on.
Where there is no will
The estate is intestate, and succession is governed by the Wills, Probate and Administration Act (Chapter 291) rather than by any document of the deceased. Someone with a sufficient interest applies for letters of administration, and on the grant becomes the administrator.
From the Registrar’s point of view nothing changes: an office copy of the letters, with the written application, produces registration of the administrator as proprietor.
Where nobody is willing or able to act
This is common where the estate is small, the family is dispersed, the beneficiaries are children, or there is a dispute about who should act. The answer is an order to administer in favour of the Public Trustee.
The Public Trustee is a standing office with the machinery to administer estates, and the Land Registration Act expressly contemplates it as a personal representative. Where an estate has stalled, applying for an order to administer is often the fastest way to unlock the land.
What happens if nothing is done
Death does not suspend the Land Act 1996. While an estate sits unadministered:
- Rent accrues, and six months’ arrears is a ground of forfeiture;
- improvement conditions remain unmet, which is another;
- a notice to show cause may issue, and if nobody responds the lease can be forfeited;
- a registered mortgagee can proceed on one month’s default plus one month’s notice — and notice may be given by leaving it on the land; and
- the term may expire, and under section 119 nothing is paid for improvements unless a further lease was applied for and refused.
The result is that families lose land not through any dispute about entitlement, but because nobody obtained a grant in time.
Section 122(4) of the Land Act requires forfeiture and show-cause notices to be served on all persons who, to the knowledge of the Departmental Head, have or claim a right, title, estate or interest in the land — or such of them as can with reasonable diligence be ascertained and found.
Completing the transmission puts the estate on the folio and makes it findable. That alone materially reduces the risk of a forfeiture nobody hears about.
Protecting the land while a grant is obtained
- Lodge a caveat if there is any risk of a dealing — and diarise the three-month lapse, which requires proceedings and written notice to the Registrar.
- Keep paying the rent, even before a grant. Preserving the asset is in everyone’s interest, and receipts can be sorted out later.
- Write to the Department explaining that the proprietor has died and a grant is being obtained, and ask to be notified of anything affecting the lease.
- Tell the mortgagee and agree an interim arrangement in writing.
- Search the title to see what else is on the folio.
Customary land is outside all of this
Customary land generally does not pass by will or on intestacy under the Wills, Probate and Administration Act. It devolves according to the custom of the place, and a dispute about who takes it goes to the Local and Provincial Land Courts and the Land Titles Commission — on evidence of custom.
An estate may contain both registered land and customary rights, and the two are administered under entirely different law. See Re Sannga, Deceased [1983] PGSC 20; [1983] PNGLR 142.
After the grant
Registration of the personal representative is step one. Getting the land to the beneficiaries is step two — an ordinary transfer, which for a State lease with more than five years to run is a controlled dealing requiring Ministerial approval, and which cannot be registered unless rent is paid and the improvement conditions performed.
Sources
- Land Registration Act (Chapter 191) — ss 33, 82, 104, 117–120; Part XII
- Wills, Probate and Administration Act (Chapter 291)
- Land Act 1996 — ss 83, 119, 122, 127–129
- 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.