The ordinary probate process — a summons, a newspaper notice, several affidavits and possibly an administration bond — is disproportionate for a modest estate. Order 19 Division 13 of the National Court Rules 1983 provides an alternative.
Rule 88
(1) An application to a Distributor under Section 101 of the Act may be made in person or by letter.
(2) The signature of the applicant to a letter referred to in Sub-rule (1) must be witnessed by a Commissioner for Oaths.
“The Act” is the Wills, Probate and Administration Act 1966.
No summons. No pleadings. No lawyer. An application in person, or by letter with the signature witnessed by a Commissioner for Oaths.
That is a deliberate contrast with the ordinary route, where proceedings are commenced by summons in Form 70 and supported by affidavits in Forms 76 to 79.
Rule 89
An applicant under Rule 88 shall give the Distributor such information in his knowledge as the Distributor may request.
The Distributor administers the estate on the strength of what the applicant supplies. Incomplete or inaccurate information about assets, debts or the persons entitled will produce a distribution that is wrong — and may expose the applicant to a claim.
Assemble the same material an ordinary application would require: the death certificate, the names and ages of those entitled with supporting certificates, the assets, and any known claims against the estate.
Rule 91
The fees to be charged to an applicant under this Division, exclusive of any sums payable as duty shall be —
(a) where the whole estate does not exceed K100.00 — the sum of K0.50; and
(b) where the whole estate exceeds K100.00 — the sum of K0.50 for every K100.00 or part of K100.00 by which the whole estate exceeds K100.00.
A scale expressed in half-kina units reflects the era in which the Rules were made. Check the current position before advising on cost, and note that the fees are exclusive of any sums payable as duty.
The threshold at which an estate counts as “small” is a matter for the Act rather than the Rules — section 101 is the operative provision.
Rule 90
(1) Any person who is dissatisfied with any act of the Distributor which affects that person adversely may apply to the Court for an order requiring the Distributor to take such action as will protect the person’s interests.
(2) On an application being made under this Rule, the Court may make such order as it thinks fit.
(3) An application under this Rule shall be made by originating summons.
The right belongs to any person adversely affected — not only the applicant. A beneficiary, or a creditor, who is prejudiced by something the Distributor has done may apply.
And the relief is broad: an order requiring the Distributor to take such action as will protect the person’s interests, with the Court able to make such order as it thinks fit.
The application is by originating summons under Order 4 Division 4 in the ordinary way.
Rule 92
An appeal to the Court from a court of summary jurisdiction under Section 111 of the Act shall be governed, with any necessary modifications, by Order 18 Division 1 (appeals from local courts).
Small estate or full grant?
| Small estate — Div 13 | Grant — Div 3 | |
|---|---|---|
| How it starts | In person or by letter to a Distributor | Summons in Form 70 |
| Newspaper notice | Not required by the Division | Required — one Port Moresby daily newspaper, r 10 |
| Affidavits | Not required | Forms 76–79, and more |
| Administration bond | Not required by the Division | Form 82 with two sureties, unless dispensed with — r 25(5) |
| Who administers | The Distributor | The executor or administrator |
| If something goes wrong | Application to the Court under r 90 | Revocation of the grant — Div 7; accounts — Div 12 |
Whether the Division is available depends on section 101 of the Act. Where the estate is above the threshold, or includes land or a business, the ordinary route is the correct one — and a Distributor cannot be asked to do what the Act does not permit.
Where there is any real dispute about entitlement or about a will, the small estate route is unsuitable in any event: disputes belong in contentious proceedings under Division 6.
For estates administered in the ordinary way, Order 19 Division 12 provides the accountability machinery: form of inventory, filing accounts, an order to file or to pass accounts, notice to be published, sureties, inspection and appearance, vouching, a certificate, and commission.
Under Rule 5(1)(f) the Registrar may exercise the Court’s powers in passing the accounts of executors, administrators and trustees, including allowing commission for their pains and trouble and costs.
Sources
- National Court Rules 1983 — O 4 Div 4; O 18 Div 1; O 19 rr 5, 8, 10, 25, 88–92, Divs 3, 6, 7, 12, 13; Forms 70, 76–79, 82
The Wills, Probate and Administration Act 1966, including sections 101 and 111, is not available on PacLII. The fee figures in Rule 91 are those in the Rules as published; check the current position before advising on cost.
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.