Where a person dies leaving assets in more than one country, a grant made in one place does not automatically operate in another. Resealing is the answer.
Order 19 Rule 1
“Resealing” means sealing, under Section 118 of the Act, probate or letters of administration.
“The Act” is the Wills, Probate and Administration Act 1966. The effect of resealing is that the foreign grant operates in Papua New Guinea as if it had been made here — a fresh grant is not needed.
Order 19 Division 3 of the National Court Rules 1983 applies to proceedings for a grant or for resealing alike, where there is no defendant and no person is cited to see the proceedings.
So resealing is commenced by summons in Form 70, may be heard in the absence of the public and without the appearance before the Court of any person, and without an appointment being obtained. The Registrar may exercise the Court’s powers. See applying for a grant.
Rule 10
Notice of the intended application … for a grant or for resealing shall be published in one Port Moresby daily newspaper, in Form 71, 72 or 73 as the case requires.
Where dispensation with the bond or sureties is sought, the notice shall require creditors to send in their claims. And the Court may require further advertisement.
Rule 27(1)(a) — Form 86
- the full residential address of the plaintiff;
- that the deceased left an estate in Papua New Guinea;
- particulars of the grant sought to be sealed;
- particulars of the persons beneficially entitled under the grant sought to be sealed;
- annexing certified copies of any relevant powers of attorney and other relevant documents;
- where the application is for resealing of letters of administration — that the plaintiff is not a bankrupt and has not assigned or encumbered his interest (if any) in the estate;
- that the plaintiff is over the age of 21 years;
- where the application is for resealing letters of administration — the plaintiff’s knowledge of claims against the estate.
Where the foreign grant is probate, those two matters do not arise. Where it is letters of administration, they mirror the requirements on a domestic application under Rule 25.
Item 5 is often the practical difficulty: certified copies of any relevant powers of attorney. Where the executor abroad is acting through an attorney in Papua New Guinea, that power must be exhibited in certified form.
Rule 27(1)(b)
(i) publication of the notice of intention to apply for the resealing;
(ii) search for a will of the deceased deposited in the Registry;
(iii) whether any caveat relating to the resealing has been lodged;
(iv) where two years or more have elapsed since the death of the deceased — whether any prior application for a grant or resealing has been made in connection with the estate.
Item (iii) makes that explicit, and Order 19 Rule 60 provides for a caveat in respect of grant. A person who objects to a foreign grant taking effect here can therefore stop it in the same way as a domestic grant. See caveats.
Rule 27(3) and (4)
(3) A copy of the document sought to be sealed, certified by the Court or by the court which made the grant, must be filed.
(4) All relevant original documents must be produced.
And (5): the Court may require further evidence to be furnished, further documents to be filed, and notices to be given.
Sub-rule (3) permits certification by the Court — the National Court — or by the court which made the grant. A copy certified by a solicitor or a notary does not meet the rule.
Obtaining a court-certified copy from the foreign registry takes time, so start early. And note sub-rule (4): the originals must be produced, not merely copies.
Rule 27(2)
Rule 25(5), (6), (7) and (8) apply as if the application were an application for administration.
So an administration bond in Form 82 is required, with two sureties unless given by a guarantee company approved by the Court; the Court may dispense with the bond, dispense with one or both of the sureties, or reduce the penalty of the bond on affidavit; and where there is a surety, an affidavit of justification by the surety in Form 83 must be filed.
As with an application for administration, dispensation must be flagged in the newspaper notice under Rule 10(3), which then shall require creditors to send in their claims.
Rule 12
Where it appears in proceedings for a grant or for resealing that the deceased was domiciled out of Papua New Guinea, the Court may require evidence of —
(a) the domicile of the deceased;
(b) the requirements of the law of the domicile as to the validity of any will made by the deceased;
(c) the law of the domicile as to the persons entitled in distribution of the estate.
Rule 13 adds that the Court may require proof of the identity of the deceased or of the plaintiff.
Resealing is available where a grant already exists in another jurisdiction. Where none does, or where the foreign grant is not one section 118 reaches, the application is for a fresh grant of probate or administration under Rules 24 to 26 — and Rule 12 will then govern the evidence about the foreign domicile.
Sources
- National Court Rules 1983 — O 19 rr 1, 5, 7–13, 24–27, 60; Forms 70–73, 78, 82, 83, 86
The Wills, Probate and Administration Act 1966, including section 118, 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.