Rule 1 of Order 19 of the National Court Rules 1983 defines administration as including administration with the will annexed, administration de bonis non and limited and special administration; and an administrator as a person to whom administration is granted.
What the definition covers
| Kind | When it applies |
|---|---|
| Administration (simple) | The deceased died intestate — no will |
| Administration with the will annexed | There is a will, but no executor able and willing to act — Rule 26 |
| Administration de bonis non | A grant was made but the estate was not fully administered, and a further grant is needed |
| Limited and special administration | A grant confined to particular property or purposes |
Rule 25(1)
An affidavit of the death of the deceased.
- the full residential address of the plaintiff;
- that the deceased died intestate;
- the searches which have been made for a will;
- where the deceased died without issue — whether he was born legitimate;
- that the deceased left an estate within Papua New Guinea;
- the relationship (if any) of the plaintiff to the deceased;
- the names and ages of the persons entitled in distribution of the estate, annexing appropriate marriage, birth, death or other certificate;
- that the plaintiff is over the age of 21 years;
- that the plaintiff is not an undischarged bankrupt and has not assigned or encumbered his interest (if any) in the estate;
- the plaintiff’s knowledge of claims against the estate.
Publication of the notice of intention to apply for administration; search for a will of the deceased deposited in the Registry; whether any caveat relating to the application has been lodged; and, where two years or more have elapsed since the death, whether any prior application for a grant or for resealing has been made in connection with the estate.
And by Rule 25(2), a certificate of searches by the Registrar-General for adoptions and legitimations shall be filed.
Naming the persons entitled in distribution and annexing the certificates proving the relationships is usually the bulk of the work. Entitlement is governed by the Wills, Probate and Administration Act 1966.
Where children have been adopted, the Adoption of Children Act (Chapter 275) affects entitlement — which is why Rule 25(2) requires the Registrar-General’s certificate of searches for adoptions and legitimations.
Rule 25(3) and (4)
Where the grant is applied for by less than all the persons who are in Papua New Guinea and are entitled to a grant of administration, the application must be supported by —
(a) the consent, in Form 81, of each such person entitled to a grant but not applying, with an affidavit verifying the consent endorsed on the document containing the consent; or
(b) an affidavit as to service, not less than 14 days before the proceedings are commenced, on each of those persons whose consent to the grant is not filed, of notice of intention to make the application.
Service may be personal or by registered post, obtaining from the postal authorities a written acknowledgment purporting to be signed by him, of receipt of the registered article.
Note the timing in paragraph (b): the notice must be served not less than 14 days before the proceedings are commenced. It cannot be cured afterwards, so identify everyone entitled at the outset and decide early whether to seek consents or to serve notice.
Rule 25(5) to (8)
(5) Subject to sub-rule (6) — (a) an administration bond, in Form 82, shall be filed; and (b) except where the bond is given by a guarantee company approved by the Court, there shall be two sureties to the bond.
(6) The Court may (a) dispense with the bond; or (b) dispense with one or both of the sureties; or (c) reduce the penalty of the bond.
(7) Where dispensation or reduction is sought, an affidavit shall be filed in support.
(8) Where there is a surety, an affidavit of justification by the surety in Form 83 shall be filed.
Rule 10(3): where it is intended to apply for dispensing with an administration bond, or with one or both of the sureties, or for reduction of the penalty of the bond, the published notice shall require creditors to send in their claims.
So the decision to seek dispensation must be made before the notice is published, because it changes what the notice must say. See applying for a grant.
The bond and its sureties protect the beneficiaries and creditors of an estate against maladministration. That is why it is required for administration but not for probate: an executor was chosen by the testator, whereas an administrator is appointed by the Court.
Rule 25(9) requires, as for probate, an oath in writing of the plaintiff in Form 79, administered by a person before whom an affidavit of the plaintiff might be sworn. And by Rule 25(10) the Court may require further evidence to be furnished, further documents to be filed and notices to be given.
Order 19 Division 5
Division 5 provides for leave to commence proceedings by a creditor for a grant of administration, the conditions attaching to such leave, and the proceedings for leave.
Under Rule 5(1)(b) the Registrar may exercise the Court’s powers in granting leave to creditors to commence proceedings for a grant of administration.
Order 19 Division 4 deals with administration during minority, elected guardians and assigned guardians; and by Rule 5(1)(c) the Registrar may exercise the Court’s powers in assigning guardians of minors.
For very small estates there is a simpler route entirely — see administration of small estates.
Sources
- National Court Rules 1983 — O 19 rr 1, 5, 10, 25, 26, Divs 4, 5, 13; Forms 76, 78–83
- Adoption of Children Act (Chapter 275)
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.