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Hua v Hua [2020] PGNC 40; N8195 (19 February 2020)

N8195

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WPA NO 81 OF 2013

IN THE ESTATE OF LATE HUA LALOAEA AUHA, late of Kerema, Gulf Province, Papua New Guinea, Public Servant, Deceased, Intestate

AND:
IN THE MATTER OF AN APPLICATION BY KEAOA KAYE HUA FOR LETTERS OF ADMINISTRATION OF THE ESTATE OF THE LATE HUA LALOAEA AUHA
Plaintiff

AND:
HELEN HAROVA HUA
First Defendant

AND:
PUBLIC CURATOR
Second Defendant

Waigani: David, J
2020: 19^th February

PROBATE JURISDICTION – application for administration of the estate of the deceased intestate by daughter from first marriage–claim by widow from second marriage of existence of a will and transfer of property to her by deed of gift – application refused.

Cases Cited:

Re James Allan Sanga, Deceased (1983) PNGLR 142
The State v Baine (1990) PNGLR 1

Treatise cited:
Halsbury’s Laws of England, Fourth Edition

Counsel:

Edward Keka Komia, for the Plaintiff
No appearance, for the Defendants

DECISION

19^th February 2020

1. DAVID, J: INTRODUCTION: This is an application for the grant of administration of the estate of the late Hua Laloaea Auha (the deceased) who died on 3 December 2013 in Port Moresby, National Capital District by the plaintiff, Ms Keaoa Kaye Hua. The application was commenced by a summons filed by the plaintiff on 6April 2016.
   
2. The trial proceeded ex-parte as I was satisfied that the defendants had due notice of the trial.
   

EVIDENCE

3. The application for administration is supported by the following documents:
   
   1. Affidavit of Joshua Hua sworn and filed on 6 October 2016 (Exhibit A);
   2. Further Affidavit of Keaoa Kaye Hua sworn and filed on 6 October 2016 (Exhibit B);
   3. Affidavit of Miriam Hua sworn on 29 September 2016 and filed on 6October 2016 (Exhibit C);
   4. Affidavit of Keaoa Kaye Hua sworn on 9August 2016 and filed on 10August 2016 (Exhibit D);
   5. Affidavit of Death of Keaoa Kaye Hua sworn on 20 March 2016 and filed on 6 April 2016 (Exhibit E);
   6. Affidavit of Publication and Searches of Keaoa Kaye Hua sworn on 20 March 2016 and filed on 6 April 2016 (Exhibit F);
   7. Affidavit of Application for Administration of Keaoa Kaye Hua sworn on 20 March 2016 and filed on 6 April 2016 (Exhibit G);
   8. Affidavit of Search for Adoptions and Legitimations by Daphne Anita Pulah of the Office of the Registrar General sworn on 19 February 2016 and filed on 6 April 2016 (Exhibit H);
   9. Affidavit for Delay of Keaoa Kaye Hua sworn on 20 March 2016 and filed on 6 April 2016 (Exhibit I);
   10. Consent to Administration of Joshua Hua filed on 6 April 2016 (Exhibit J);
   11. Consent to Administration of Miriam Hua filed on 6 April 2016 (Exhibit K); and
12. Consent to Administration of Harai Hoko filed on 6 April 2016 (Exhibit L).
    

FINDINGS OF FACT

4. From all the evidence before me which is not contested by any rebuttal evidence from the defendants, I make the following findings of fact:
   
   1. The deceased, late Hua Laloaea Auha, a retired Public Servant was formerly of Umaripi, Kikori in the Gulf Province: Exhibit E.
   2. The deceased died on 3 December 2013 in Port Moresby: Certificate of Death Entry, Exhibit E.
   2. The deceased was married twice, firstly to Harai Dai Miana Hoko of Vailala East, Kikori, Gulf Province; and secondly to the first defendant, Helen Harova Hua: Exhibit G.
   3. The deceased’s biological children from his first marriage are; Joshua Hua born in Port Moresby on 9 February 1964; Kaye Keaoa Hua (the plaintiff) born in Port Moresby on 4 April 1966; and Miriam Hua born in Port Moresby on 18 May 1968: Exhibit H.
   4. The deceased lived with the first defendant until his death.
   5. The first defendant had two female children from a previous relationship namely, Julie and Alofa.
   6. The deceased and the first defendant also raised or adopted one Aaron Hua who is now deceased.
   7. At the time of his death, the deceased was the registered proprietor of all that residential land with improvements situated upon Allotment 4, Section 243Hohola (Gerehu) in the National Capital District and contained in State Lease Volume 39 Folio 9532 (the property): Exhibit D.
   8. A notice of intended application for administration of the estate of the deceased was published in The National newspaper on Thursday, 7August 2014: Exhibit F.
   9. A search conducted by the plaintiff at the Registry of the National Court on 20 March 2016 revealed that; there was no evidence of a caveat having been lodged relating to any grant or reseal being made in the estate of the deceased; no evidence of a will of the deceased having been deposited in the Registry; and no evidence of any prior application for probate or administration or resealing in the estate having been made: Exhibit F.
   10. A search conducted by Daphne Anita Pulah, Assistant Birth Registration Officer/Records Officer of the records of the Office of the Registrar-General on 19 February 2016 revealed that; there was no evidence of an order or application for legitimation having been deposited in the Registry in the name of the deceased prior to the death of the deceased; and there was no evidence of any prior application for adoption or legitimation in the name of the deceased having been made: Exhibit H.
   11. Joshua Hua, biological son of the deceased consents to letters of administration of the estate of the deceased being granted to the plaintiff and to an administration bond being dispensed with: Exhibit J.
   12. Miriam Hua, biological daughter of the deceased consents to letters of administration of the estate of the deceased being granted to the plaintiff and to an administration bond being dispensed with: Exhibit K.
   13. Harai Hoko, the first wife of the deceased, consents to letters of administration of the estate of the deceased being granted to the plaintiff and to an administration bond being dispensed with: Exhibit L.
   14. A reasonable explanation has been provided by the plaintiff for the delay in commencing proceedings for a grant of administration more than six months after the death of the deceased, i.e., a dispute arose between the plaintiff and the first defendant who was armed with a purported will as to who should apply for a grant of administration and being unaware of the relevant procedure for applying for grant of administration: Exhibit I.
       

CONTESTED FACTS

5. From all the evidence before me, the following facts are disputed:
   
   1. The deceased made a will in favour of the first defendant dated 18 March 2010 (the will) prior to his death.
   2. By a Deed of Gift made in 2012 (the deed),the deceased gave the property to the first defendant.
   3. The plaintiff is a suitable person to be granted administration of the estate of the deceased.
      

LEGAL ISSUES

6. The legal issues for my determination are:
   
   1. Whether the will is valid and binding?
   2. Whether the deceased by the deed gave the property to the first defendant?
   3. Whether the plaintiff’s is a suitable person to be granted administration of the estate of the deceased?
      

ANALYSIS OF ISSUES AND EVIDENCE
WILL

7. The plaintiff essentially contends that the first defendant has failed to prove that the will is authentic and therefore valid and binding.
   
8. In addition, the plaintiff argues that the will is defective as:
   
   1. the signatures on it are not that of the deceased, but those of the first defendant and others who are guilty of fraud; or
   2. the signature of the deceased was obtained under duress and dubious circumstances; and
   3. the will does not meet the formal requirements of a valid will prescribed by Sections 6, 7 and 13 of the Wills Probate and Administration Act 1966.
      
9. I have considered the plaintiff’s submissions.
   
10. Subject to Section 16 of the Wills Probate and Administration Act 1966 which applies to soldiers’ and sailors’ wills, a person of full age, ie, aged 21 years or more may make a valid will: Section 12,Wills Probate and Administration Act 1966.
    
11. The requisites for formal validity of a will generally are:
    
    1. It is in writing: Section 13(1), Wills Probate and Administration Act 1966.
    2. It is signed at the foot or end by the testator or by some other person in his presence and by his direction: Section 13(1)(a), Wills Probate and Administration Act 1966.
    3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time: Section 13(1)(b), Wills Probate and Administration Act 1966.
    4. The witnesses attest and subscribe the will in the presence of the testator: Section 13(1)(c), Wills Probate and Administration Act 1966.
       
12. There appears to be no provision under the Wills Probate and Administration Act 1966 which prohibits any person from witnessing a will. However, a person with a disability should not act as a witness to a will unless his or her mental capacity is such that he or she is conscious of the act done and would be willing to testify in support of the execution of the will: Halsbury’s Laws of England, Fourth Edition, para 269. A blind person would not be capable of witnessing a will as he or she is unable to witness something visible such as the signature of a will: Halsbury’s Laws of England, Fourth Edition, para 269.
    
13. A will may be signed or acknowledged in the presence of, and may be subscribed by an authorized witness: Section 13(3), Wills Probate and Administration Act 1966. An “authorized witness” means a Judge, Magistrate of a District Court or Magistrate of a Local Court, or some other person authorized by the Head of State, acting on advice, by notice in the National Gazette: Section 9(1), Wills Probate and Administration Act 1966.
    
14. The will, a copy of which is annexed to Exhibit D as part of annexure A does not meet all the formalities of a valid will. There is no evidence from witnesses testifying in support of the execution of the will.
    
15. There is no expert evidence before the Court to prove the authenticity or otherwise of the signature on the will.
    
16. I have considered Section 31 of the Evidence Act which states:
    

31. Comparison of disputed hand-writings.

A comparison of a disputed hand-writing with a sample of hand-writing proved, to the satisfaction of the court, to be genuine may be made by witnesses, and the hand-writings and the testimony of the witnesses respecting them may be submitted to the court as evidence of the genuineness or otherwise of the hand-writing in dispute.

17. I have also considered The State v Baine (1990) PNGLR 1where Section 31 of the Evidence Act was considered. There, it was held that although expert evidence is not essential for a tribunal of fact to come to a conclusion on a comparison of disputed handwriting, a judge sitting alone in a criminal trial must warn himself of the dangers involved in proceeding without expert testimony. This is not a criminal trial, but I think the principle propounded in that case is equally applicable to the present case and I adopt and apply it here. I have warned my self of the dangers involved in proceeding without expert testimony and am reluctant to make any finding on the authenticity or otherwise of the signature on the will based on the kind of evidence before me.
    
18. Nevertheless, the will is invalid as it is defective or for want of formality.
    
19. The Statutory Declaration purportedly of the deceased dated 18 March 2010 (Statutory Declaration), a copy of which is annexed to Exhibit D as part of annexure A to my mind is not a will or a testamentary disposition. My earlier observations on Section 31 of the Evidence Act and the dangers of proceeding without expert testimony also applies and so am reluctant to make any finding on the authenticity or otherwise of the signature on the Statutory Declaration.
    
20. I have considered Section 35 of the Wills Probate and Administration Act 1966. It states:
    

35. Defective and informal wills.

(1) Notwithstanding anything in this Division or in any other law but subject to Subsections (3) and (4), a will, whenever made, is not invalid, and a gift, devise, bequest, appointment or thing in or under any such will is not invalid and does not fail, solely by reason of—

(a) any defect or want of formality; or

(b) any failure to comply with this Act or of any such law,

if it is proved that the testator intended the will to be his last will and that intention is clear.

(2) Subject to Subsection (3), a gift, devise, appointment or thing to which Subsection (1) applies shall be given effect to, and has effect, according to the intention of the testator so far as that intention is clear and can be given effect to.

(3) Subsection (1) does not affect the operation of Section 19.

(4) Subsection (1) does not apply to or in relation to the will of a person who died before the commencement date.

21. In light of the defect or want of formality of the will and the first defendant having raised the issue of the existence of a valid will, the first defendant has failed to prove on the balance of probabilities that the deceased intended the will to be his last will and testament and that intention is clear. There is no cogent and convincing evidence from the first defendant before the Court of such a clear intention: Re James Allan Sanga, Deceased (1983) PNGLR 142.
    

22. I am satisfied on the evidence before me that the will is neither valid nor binding. The deceased therefore died intestate.

DEED OF GIFT

23. The deed is not in evidence. There is therefore no clear or cogent evidence before the Court to demonstrate that the deceased gave the property to the first defendant through the deed in 2012 prior to his death.

SUITABILITY OF PLAINTIFF TO BE GRANTED ADMINISTRATION

24. There is no doubt that the plaintiff is a beneficiary. The plaintiff appears to have met all the requirements for an application for administration except an oath in writing that she will well and truly administer the estate of the deceased according to law and will render a just and true account of the administration of it to the Court within 12 months from the date of the grant: Order 19 Rule 25(9), National Court Rules. I think this omission in the evidence is fatal. However, even if an oath in writing were produced in evidence, since there is a serious dispute between the plaintiff and the first defendant as to who should administer the estate of the deceased, I would find that the plaintiff in the circumstances would not be a suitable person to be granted administration of the deceased’s estate.

25. The Public Curator is the neutral party in this dispute. He would be the most suitable person to apply for the grant of administration of the estate of the deceased in the circumstances. He is more than willing to assist the beneficiaries in this regard which is manifested by his decision of 29 January 2015, a copy of which is annexed to Exhibit G as annexure B.

CONCLUSION

26. In the circumstances, I will refuse the plaintiff’s application for the grant of administration of the intestate estate of the deceased. In the exercise of my discretion, I will allow the parties to bear their own costs.

ORDER

27. The formal orders of the Court are:

1. The plaintiff’s application for a grant of administration of the intestate estate of the deceased is refused.
2. Each party shall bear their own costs.
   

Judgment and orders accordingly
____________________________________________________________________
Chesterfield: Lawyers for the Plaintiff