ORDER 19.-PROBATE RULES.
Division 1.-Preliminary.
1. Interpretation of Order 19. (78/1)
In this Order, unless the contrary intention appears -
the Act means the Wills, Probate and Administration Act 1966;
administration includes administration with the will annexed, administration de bonis non and limited and special administration;
administrator means a person to whom administration is granted;
estate includes real estate and personal estate;
grant means a grant of probate or administration;
resealing means sealing, under Section 118 of the Act, probate or letters of administration;
will includes codicil;
and words in this Order have the same meaning as they have in the Act.
2. Transition. (78/2)
(1) Proceedings for a grant or for resealing to which Division 3 applies, which were commenced before the commencement date, may be continued to grant or resealing in accordance with the practice, procedure, requirements and forms in force immediately before the commencement date.
(2) Where the proceedings are commenced in accordance with Sub-rule (1) the notice of address filed in the proceedings shall have effect as if it were the applicant's address for service stated in proceedings commenced by summons under Division 3.
3. Heading, title and backsheets. (78/3)
(1) This Rule applies to any document in proceedings where the powers of the Court may be exercised by the Registrar.
(2) The document shall be headed In the National Court of Justice, shall be entitled The estate of with a reference to the name of the deceased and his place of residence and his occupation at the time of his death, and, where a grant or reseal has been made in the estate, shall show the number given in the Registry to the grant or reseal.
(3) A document prepared by a party shall have a backsheet headed, entitled and showing the number (if any) of the grant or reseal as provided by Sub-rule (2) and showing also -
(a) a description of the document; and
(b) the name, address and telephone number of the solicitor for the party and, if the solicitor acts in the proceedings by an agent, the name, address and telephone number of the agent.
(4) Where a party is not represented by a solicitor, Sub-rule (3)(b) does not apply, but the backsheet shall show the name and address for service of the party.
(5) The backsheet of an affidavit shall be endorsed with the name of the deponent and the date of swearing.
(6) Order 2 Rules 22 and 23 (heading and title) and Order 2 Rule 27 (backsheets) do not apply.
4. Serial number of proceedings. (78/4)
Order 2 Rule 20 (serial number) does not apply to proceedings where the powers of the Court may be exercised by the Registrar.
Division 2.-Registrar.
5. Powers of Registrar. (78/5)
(1) Subject to Section 42 of the Act, the Registrar may exercise the powers of the Court in and about -
(a) proceedings to which Division 3 applies (including making a grant on presumption of death and giving leave in the grant to distribute the estate); or
(b) granting leave to creditors to commence proceedings for a grant of administration; or
(c) assigning guardians of minors; or
(d) settling and issuing citations; or
(e) appointing next friends or guardians at law of disabled persons; or
(f) passing the accounts of executors, administrators and trustees, including the allowing of commission or percentage to executors, administrators and trustees for their pains and trouble and costs in connection with the accounts; or
(g) granting further time to executors, administrators or trustees to file or to file and pass their accounts; or
(h) enlarging time under Section 91 of the Act; or
(i) revocation or rescission of grants of probate or administration where the revocation or rescission is not contested; or
(j) authorization of the sale, lease or mortgage of any of the real estate as to which any person dies intestate where the gross value of such real estate does not exceed K400.00, and no objection is raised to the sale, lease or mortgage.
(2) Where the Court refers any matter to the Registrar for the exercise in respect of that matter of any of the powers of the Court, the Registrar may exercise in respect of that matter that power.
(3) In respect of any of the matters referred to in Sub-rule (1) or (2), the Registrar may exercise the power of the Court under Order 1 Rule 7 (relief from the Rules).
(4) Where in any of the matters referred to in Sub-rule (1) or (2) the Registrar has doubt or difficulty or is requested by any person to refer the matter to the Court, he shall refer the matter to the Court.
6. Non application of Order 2 Rule 18. (78/6)
Order 2 Rule 18 (review of act or decision by Registrar) does not apply in respect of the Registrar.
Division 3.-Non-contentious Proceedings for Grant or Resealing.
7. Application of Division 3. (78/7)
This Division applies to proceedings for a grant or for resealing where-
(a) there is no defendant; and
(b) no person is cited to see the proceedings.
8. Commencement of proceedings. (78/8)
(1) Proceedings for the grant or resealing shall be commenced by summons in Form 70.
(2) Notwithstanding Order 6 Rule 7(1), the address for service of the plaintiff need not be that of a place within 15 km of the Registry but shall be that of a place within Papua New Guinea.
9. Hearing. (78/9)
(1) The proceedings may be heard -
(a) in the absence of the public; and
(b) without the appearance before the Court of any person.
(2) The proceedings shall be heard without an appointment being obtained for the hearing.
(3) Order 4 Division 4 (originating summons) does not apply.
10. Publication of notice of intended application. (78/10)
(1) Notice, in the form prescribed of an intended application for a grant or for resealing shall be published in one Port Moresby daily newspaper.
(2) A notice under Sub-rule (1) shall state the date or dates of any will and each codicil (if any) sought to be proved or where the document bears no date a statement of this fact and of the approximate date, if known.
(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 notice under Sub-rule (1) shall require creditors to send in their claims.
(4) The Court may require further advertisement.
(5) Forms for use under this Rule shall be Forms 71, 72 or 73, as the case requires.
11. Delay. (78/11)
Where proceedings for a grant -
(a) are not commenced until six months or more after the death of the deceased; and
(b) are the first proceedings for a grant,
the plaintiff shall file an affidavit explaining the delay.
12. Domicile out of Papua New Guinea. (78/12)
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; and
(b) the requirements of the law of the domicile as to the validity of any will made by the deceased; and
(c) the law of the domicile as to the persons entitled in distribution of the estate.
13. Identity. (78/13)
The Court may, in proceedings for a grant, require proof of the identity of the deceased or of the plaintiff.
14. Renunciation. (78/14)
(1) Where a person has renounced probate or administration, he shall not be granted representation of the deceased in another capacity.
(2) A renunciation by an executor of probate may be made in Form 74.
15. Will not sufficiently attested. (78/15)
(1) This Rule applies where in proceedings for a grant the plaintiff seeks to prove a will which does not contain a sufficient attestation clause or contains no attestation clause.
(2) The plaintiff shall file an affidavit in Form 75 of one or more of the attesting witnesses as to due execution of the will.
(3) Where the plaintiff is unable to comply with Sub-rule (2), he shall file an affidavit explaining the reason for the inability and an affidavit by some person, other than an attesting witness, who was present when the will was executed.
(4) Where the plaintiff is unable to comply with Sub-rule (2) or (3), he shall furnish evidence, on affidavit, of the reason for the inability and of the identity of the signature of the testator and of the attesting witnesses respectively or of any other facts from which it may be inferred that the will was duly executed.
16. Testator's knowledge and approval of contents. (78/16)
(1) This Rule applies where in proceedings for a grant the plaintiff seeks to prove a will and -
(a) the will appears to have been signed by a blind testator; or
(b) the will appears to have been signed by an illiterate testator; or
(c) the will appears to have been signed by another person by direction of the testator; or
(d) there are circumstances which raise doubt whether the testator, at the time of execution of the will, knew and approved of its contents.
(2) The plaintiff shall furnish evidence on affidavit which establishes that the testator at the time of execution of the will, knew and approved of its contents.
(3) Where any of the evidence is that of an attesting witness or other person present at the time of execution. his affidavit shall state the manner in which the will was executed.
17. Further evidence as to execution. (78/17)
Where in proceedings for a grant the plaintiff seeks to prove a will and notwithstanding that the plaintiff has complied with Rules 15 and 16, the Court considers that there is some doubt about the execution of the will or that any circumstances in connection with the execution requires explanation, the Court may require further evidence.
18. Date of execution. (78/18)
(1) This Rule applies where in proceedings for a grant the plaintiff seeks to prove a will and the will is undated or there appears to be doubt as to the date on which it was executed.
(2) The Court may require evidence establishing the date of execution.
19. Interlineations, obliterations and alterations. (78/19)
(1) This Rule applies where in proceedings for a grant the plaintiff seeks to prove a will and -
(a) an interlineation, obliteration or alteration appears in the will; and
(b) the interlineation, obliteration or alteration has not been duly authenticated or otherwise validated.
(2) The Court may require evidence establishing whether the interlineation, obliteration or alteration was made before the execution of the will.
20. Documents referred to or attached. (78/20)
(1) This Rule applies where in proceedings for a grant the plaintiff seeks to prove a will and -
(a) the will contains a reference to a document that suggests that the document may be incorporated in the will; or
(b) there are marks on the will from which it appears that a document has been attached to it.
(2) The Court may require -
(a) production of the document; and
(b) evidence in regard to it.
21. Part of will paper torn off or cut off. (78/21)
(1) This Rule applies where in proceedings for a grant the plaintiff seeks to prove a will and it appears that part of the paper on which the will was written has been torn off or cut off.
(2) The Court may require -
(a) production of the part torn off or cut off; and
(b) evidence in regard to it.
22. Burning, tearing or other sign of revocation. (78/22)
(1) This Rule applies where in proceedings for a grant the plaintiff seeks to prove a will and -
(a) the appearance of the will suggests that there may have been an attempted destruction of it by burning, tearing or otherwise; or
(b) there are other circumstances which suggest that the testator may have revoked the will.
(2) The circumstances shall be fully explained on affidavit.
23. Inoperative will. (78/23)
(1) This Rule applies where in proceedings for a grant the plaintiff seeks to prove a will and it appears that the will is or may be inoperative or partly inoperative by reason of the executors and beneficiaries all predeceasing the testator or for any other reason.
(2) The Court may require evidence -
(a) as to matters relevant to whether the will is inoperative or partly inoperative; and
(b) showing what persons would be entitled in distribution of the estate on intestacy.
24. Evidence and documents in application for probate. (78/24)
(1) An application for probate shall be supported by an affidavit -
(a) in Form 76, of the death of the testator; and
(b) in Form 77 -
(i) of the full residential address of the plaintiff; and
(ii) that the testator has left a will and the date of the will; and
(iii) of the names of the subscribing witnesses to the will; and
(iv) whether the deceased married after making the will; and
(v) that the deceased left an estate within Papua New Guinea; and
(vi) that the plaintiff is over the age of 21 years; and
(vii) where an executor has died or has renounced\ probate-of the date of his death or renunciation; and
(c) in Form 78 -
(i) of publication of the notice of intention to apply for probate; and
(ii) of search for a will of the testator deposited in the Registry; and
(iii) whether a caveat relating to the application has been lodged; and
(iv) where two years or more have elapsed since the death of the deceased-whether any prior application for any grant or resealing has been made in connection with the estate.
(2) Where an executor has renounced probate evidence of the renunciation shall be furnished and where a renunciation has been signed by the executor, the renunciation shall be filed.
(3) Where an executor has died, evidence of his death shall be furnished.
(4) Where an executor is not joining in the application and leave is sought to be reserved to him to come in and apply for probate, evidence shall be furnished that he has been served, not less than 14 days before the proceedings for grant are commenced with notice of the intended proceedings or that he is not in Papua New Guinea, or that he is a minor.
(5) The notice referred to in Sub-rule (4) may be served personally or by sending the notice by registered post to the executor and obtaining from the postal authorities a written acknowledgment, purporting to be signed by him, of receipt of the registered article.
(6) An affidavit of the plaintiff stating his means of identifying the will shall be filed and the will shall be marked by him and by the person before whom the affidavit is sworn.
(7) An oath in writing of the plaintiff in Form 79, administered by a person before whom an affidavit of the plaintiff might be sworn, shall be filed.
(8) The Court may require further evidence to be furnished, further documents to be filed, and notices to be given.
25. Evidence and documents in support of applications for administration. (78/25)
(1) An application for administration shall be supported by affidavits-
(a) in Form 76, of the death of the deceased; and
(b) in Form 80 -
(i) of the full residential address of the plaintiff; and
(ii) that the deceased died intestate; and
(iii) of the searches which have been made for a will; and
(iv) where the deceased died without issue-whether he was born legitimate; and
(v) that the deceased left an estate within Papua New Guinea; and
(vi) of the relationship (if any) of the plaintiff to the deceased; and
(vii) of the names and ages of the persons entitled in\ distribution of the estate (annexing appropriate marriage, birth, death or other certificate); and
(viii) that the plaintiff is over the age of 21 years; and
(ix) that the plaintiff is not an undischarged bankrupt and has not assigned or encumbered his interest (if any) in the estate; and
(x) of the plaintiff's knowledge of claims against the estate; and
(c) in Form 78 -
(i) of publication of the notice of intention to apply for administration; and
(ii) of search for a will of the deceased deposited in the Registry; and
(iii) whether any caveat relating to the application has been lodged; and
(iv) where two years or more have elapsed since the death of the deceased-whether any prior application for a grant or for resealing has been made in connection with the estate.
(2) A certificate of searches by the Registrar-General for adoptions and legitimations shall be filed.
(3) 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 for the grant, to the grant being made to the plaintiff, 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.
(4) The notice referred to in Sub-rule (3)(b) may be served personally or by sending the notice by registered post to the person to be served and obtaining from the postal authorities a written acknowledgment purporting to be signed by him, of receipt of the registered article.
(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 dispensing with the bond or with one or both of the sureties or reduction of the penalty of the bond, is sought, an affidavit shall be filed in support of the dispensing or the reduction.
(8) Where there is a surety to a bond, an affidavit of justification by the surety in Form 83 shall be filed.
(9) An oath in writing of the plaintiff in Form 79, administered by a person before whom an affidavit of the plaintiff might be sworn, shall be filed.
(10) The Court may require further evidence to be furnished, further documents to be filed and notices to be given.
26. Evidence and documents in support of application for administration with will annexed. (78/26)
(1) An application for administration with the will annexed shall be supported by -
(a) the affidavits and documents, so far as appropriate, referred to in Rule 25; and
(b) the affidavits and documents which, if the application were an application for probate of the will, would be required by Rule 24(1)(b)(ii), (iii) and (iv) and (2) and (3); and
(c) evidence on affidavit of the name and full residential address of any executor appointed by the will.
(2) An affidavit of the plaintiff pursuant to Sub-rule (1) shall be in Form 84.
(3) Where the executor or the executors named in the will renounces or renounce probate in favour of the Public Curator, in Form 85, administration with the will annexed may be granted to the Public Curator without the consent or citation of any person.
(4) The Court may require further evidence to be furnished, further documents to be filed, and notices to be given.
27. Evidence and documents in support of application for resealing. (78/28)
(1) An application for resealing shall be supported by affidavits -
(a) in Form 86 -
(i) of the full residential address of the plaintiff; and
(ii) that the deceased left an estate in Papua New Guinea; and
(iii) of particulars of the grant sought to be sealed; and
(iv) of particulars of the persons beneficially entitled under the grant sought to be sealed; and
(v) annexing certified copies of any relevant powers of attorney and other relevant documents; and
(vi) 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; and
(vii) that the plaintiff is over the age of 21 years; and
(viii) where the application is for resealing letters of administration-of the plaintiff's knowledge of claims against the estate; and
(b) in Form 78 -
(i) of publication of the notice of intention to apply for the resealing;\ and
(ii) of search for a will of the deceased deposited in the Registry; and
(iii) whether any caveat relating to the resealing has been lodged; and
(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.
(2) Rule 25(5), (6), (7) and (8) apply as if the application were an application for administration.
(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.
(5) The Court may require further evidence to be furnished, further documents to be filed, and notices to be given.
Division 4.-Administration During Minority.
28. Administration during minority. (78/29)
(1) The Court may grant administration during minority, for the use and benefit of minors, to -
(a) the legal or testamentary guardian of the minors; or
(b) a guardian elected as provided by Rule 29; or
(c) a guardian of the minors, assigned on his application, by the Court.
(2) A grant of administration during minority shall be subject to such limitations and conditions as the Court thinks fit.
29. Elected guardians. (78/30)
(1) A minor who is aged 16 years or upwards may elect a guardian for the purpose of applying for a grant of administration.
(2) The elected guardian may act also for minors who are less than 16 years of age but who are in the same family as the minor who elected.
(3) Notwithstanding the election of a guardian the Court may grant administration to any person who is referred to in Rule 28(1)(a) or (c) and whom it considers to be more appropriate or better fitted to act as guardian.
(4) A grant shall not be made to an elected guardian unless evidence of his election and of his appropriateness and fitness to be guardian is furnished.
30. Assigned guardians. (78/31)
(1) Application by a person for an order assigning him as the guardian of minors for the purpose of applying for administration shall be made by originating summons.
(2) There shall be no defendant in the proceedings.
(3) The proceedings may be heard -
(a) in the absence of the public; and
(b) without the appearance before the Court of any person.
(4) The proceedings shall be heard without an appointment being obtained for the hearing.
(5) The application shall be supported by evidence of the relationship (if any) of the proposed guardian to the minors and of his appropriateness and fitness to act as guardian.
(6) A draft minute of the order sought shall be lodged with the Registrar.
(7) The order shall be entered.
(8) The order may be entered at any time after the minute of it is signed.
Division 5.-Application by Creditors for Administration.
31. Leave to commence proceedings. (78/32)
(1) A creditor shall not, without the leave of the Court, commence proceedings for a grant of administration.
(2) The Court may, if it thinks fit, refuse or withhold a grant to a creditor, notwithstanding that he has obtained leave to commence proceedings for the grant.
32. Conditions. (78/33)
(1) Where a creditor desires to commence proceedings for a grant of administration and the deceased left a will, he shall -
(a) where an executor is appointed by the will and has not renounced probate-serve on the executor a citation to take probate; and
(b) if the executor fails to comply with the citation to take probate-serve on the widow or widower of the deceased and on every beneficiary under the will and, where there is a partial intestacy, on every person entitled in administration of the estate on intestacy, a citation to pray for administration.
(2) Where the executor has been served with a citation to take probate and has failed to comply with the citation, it is not necessary, unless the Court otherwise directs, to serve him with a citation to pray for administration.
(3) Where an executor is appointed by the will and has not renounced probate, the creditor shall not serve a citation to pray for administration unless he has complied with Sub-rule (1)(a) and the executor has failed to comply with the citation to take probate.
(4) Where a creditor desires to commence proceedings for a grant of administration and the deceased did not leave a will, he shall serve on the widow or widower of the deceased and on every person entitled in administration of the estate on intestacy a citation to pray for administration.
33. Proceedings for leave. (78/34)
(1) Proceedings for an order that a creditor have leave to commence proceedings for a grant of administration shall be commenced by originating summons.
(2) There shall be no defendant in the proceedings.
(3) The proceedings may be heard -
(a) in the absence of the public; and
(b) without the attendance before the Court of any person.
(4) The proceedings shall be heard without an appointment being obtained for the hearing.
(5) The creditor shall file -
(a) an affidavit in proof of the debt to him; and
(b) an affidavit of compliance with Rule 32 and that none of the persons cited has complied with the citation; and
(c) an administration bond in Form 82; and
(d) an affidavit of justification, in Form 83, of any surety to the bond.
(6) Except where the bond is given by a guarantee company approved by the Court, there shall be two sureties to the bond.
(7) A draft minute of the order sought shall be lodged with the Registrar.
(8) The order shall be entered.
(9) The order may be entered at any time after the minute of it is signed.
(10) The Court may require further evidence to be furnished, further documents to be filed, further citations to be served, and notices to be given.
Division 6.-Contentious Proceedings for Grant or Resealing.
34. Application of Division 6. (78/35)
This Division applies to applications for a grant or for resealing where
(a) there is a defendant; or
(b) a person is cited to see the proceedings.
35. Commencement of proceedings. (78/36)
(1) Where there is a defendant the proceedings shall be commenced by writ of summons.
(2) Where there is no defendant the proceedings shall be commenced by originating summons.
36. Admissions. (78/37)
Order 9 Rule 30 (judgement on admissions) does not apply to proceedings to which this Division applies.
Division 7.-Proceedings for Revocation of Grant.
37. Deposit of grant. (78/38)
Where proceedings have been commenced for revocation of a grant the Court may on the application of the plaintiff, or of its own motion, order the executor or administrator to deposit the grant in the Registry.
38. Order before commencement of proceedings. (78/39)
In an urgent case the Court may, on the application of a person who intends to commence proceedings for revocation of a grant, order the executor or administrator to deposit the grant in the Registry to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings.
39. Commencement of non-contentious proceedings. (78/40)
Proceedings for revocation of a grant shall, where there is no defendant, be commenced by summons in Form 87.
40. Hearing with no defendant. (78/41)
(1) Where there is no defendant, proceedings may be heard -
(a) in the absence of the public; and
(b) without the appearance before the Court of any person.
(2) The proceedings shall be heard without an appointment being obtained for the hearing.
41. Minute of order. (78/42)
(1) A draft minute of the order sought shall be lodged with the Registrar before any order is made on the summons.
(2) The order shall be entered.
(3) The order may be entered at any time after the minute of it is signed.
42. Commencement of contentious proceedings. (78/43)
Proceedings for revocation of a grant shall, where there is a defendant, be commenced by a writ of summons.
Division 8.-Contentious Proceedings Generally.
43. Cross-claim. (78/44)
(1) A party in proceedings may cross-claim for a grant or for resealing.
(2) Where notice of the intended application has not been published the party shall within 30 days of filing the cross-claim, cause notice of the intended application to be published in the manner and with such variations as the circumstances require, in the form required by Rule 10.
44. Intervention. (78/45)
(1) An application to intervene in proceedings for a grant shall be by motion on notice in the proceedings for an order that the person applying be added as a party.
(2) Before filing the notice of motion the person applying shall give notice of his intention to defend the proceedings.
Division 9.-Citations.
45. Request for issue. (78/46)
(1) Application for issue of a citation shall be made by filing a request in Form 88.
(2) The person requesting issue of a citation shall -
(a) file an affidavit verifying the averments contained in the proposed citation; and
(b) lodge two copies of the proposed citation.
46. Citation to be settled. (78/47)
A citation must be settled by the Court before it is issued.
47. Seal. (78/48)
A citation shall be under seal.
48. Registrar to file copy. (78/49)
Where a citation is issued the Registrar shall file a copy of it.
49. Citation to bring in abolished. (78/50)
(1) A citation to bring in a grant, will or other document shall not be issued.
(2) This Rule does not limit the power of the Court to order a person to deposit in the Registry a grant, will or other document.
(3) An application under Section 47 of the Act for a show cause summons shall be made by originating summons.
(4) A show cause summons under Section 47 of the Act shall be in Form 89.
(5) Order 4 Rules 24, 26, 28, 30, 31, 32, 35 and 36 shall, with any necessary modifications, apply to a summons to show cause under this Rule as they apply to an originating summons.
50. Citation to pray for administration. (78/51)
(1) A requirement of a person to pray for administration shall be by citation which may be in Form 90.
(2) An answer to a citation to pray for administration shall be in Form 91.
51. Citation to take probate. (78/52)
(1) A requirement of an executor named in a will to take probate shall be by citation which may be in Form 92.
(2) An answer to a citation to take probate shall be in Form 93.
52. Citation to see proceedings. (78/53)
(1) On the application of any party to proceedings to which Division 6 applies, a citation may be issued against any person who is not a party to the proceedings but who has an adverse interest to the applicant notifying him that if he does not answer the citation by giving a notice of his intention to defend the proceedings, the proceedings may be heard and determined in his absence.
(2) The citation may be in Form 94.
(3) Where a person cited to see proceedings has given a notice of intention to defend the proceedings, he shall be entitled to such notice of the hearing or trial of the proceedings as if he were a defendant in the proceedings.
53. Time for answer to citation. (78/54)
(1) This Rule applies to any citation other than a citation to see proceedings.
(2) In settling the citation the Court shall fix the time limited by the citation for answer to it.
(3) Subject to Sub-rule (4) the time limited by the citation for answer to it shall be -
(a) in the case of service within Papua New Guinea-14 days; and
(b) in the case of service outside Papua New Guinea-three months.
(4) The Court may, in settling the citation, fix shorter or longer periods than the periods referred to in Sub-rule (3).
(5) Where the applicant for issue of the citation wishes shorter or longer periods to be fixed, he shall include in his request for issue of the citation a statement of the period or periods which he requests be fixed and file an affidavit in support of that period or those periods being fixed.
54. Service. (78/55)
(1) A citation shall be served personally on the person cited.
(2) A citation may be served outside Papua New Guinea.
(3) Order 6 Division 2 (service outside Papua New Guinea) does not apply.
(4) Service of a citation on a disabled person shall not be effected otherwise than in accordance with Sub-rules (5) to (8).
(5) Where the person to be served is a minor, the citation may be served -
(a) if he is aged 16 years or upwards-on him; or
(b) on a parent of him or a guardian of his person or of his estate; or
(c) if he has no parent and has no guardian of his person or of his estate on a person with whom he resides or in whose care he is.
(6) Where the person to be served is a mentally disabled person, the citation may be served -
(a) if he has a curator-on the curator; or
(b) if he has no curator-on a person with whom he resides or in whose care he is.
(7) The citation may be served on any person (including the disabled person) who the Court may, before or after the service, approve.
(8) A citation served pursuant to any of Sub-rules (5) to (7) must be served in the manner required by the Rules with respect to personal service of a document.
55. Appearance of person cited. (78/56)
(1) Subject to Sub-rule (2), Order 7 (notice of intention to defend) applies to notice of intention to defend by a person cited to see proceedings as if the person cited were a defendant in the proceedings.
(2) Order 7 Rules 7 (conditional notice) and 8 (setting aside originating process) do not apply.
56. Election to be a defendant. (78/57)
(1) A person cited to see proceedings may, except where he has lodged a caveat requiring proof in solemn form of a will to which the proceedings relate, include in his notice of appearance a statement that he elects to be a defendant in the proceedings.
(2) Where the person cited elects under Sub-rule (1) to be a defendant in the proceedings he shall become a defendant in the proceedings and the proceedings shall continue as if he were joined as a defendant by the originating process and he were served with the originating process on the day on which he was served with the citation to see the proceedings.
(3) Where the person cited has lodged a caveat requiring proof in solemn form of a will to which the proceedings relate he may, after giving notice of intention to defend the proceedings, apply for an order adding him as a party in the proceedings.
57. Disabled persons. (78/58)
(1) This Rule applies where a citation is served on a disabled person.
(2) Service of the citation shall not take effect before the appointment of a next friend for the disabled person.
(3) The disabled person may answer the citation by his next friend but not otherwise.
(4) Order 5 Division 2 (disability) does not apply to appointment of a next friend for the disabled person.
(5) Application for the appointment of a next friend for the disabled person shall be by originating summons.
(6) There shall be no defendant in the proceedings for appointment of the next friend.
(7) The proceedings for appointment of the next friend shall be heard without an appointment being obtained for the hearing.
(8) The proceedings for appointment of the next friend may be heard
(a) in the absence of the public; and
(b) without the appearance before the Court of any person.
(9) A draft minute of the order sought shall be lodged with the Registrar before any order is made on the summons.
(10) The order shall be entered.
(11) The order may be entered at any time after the minute of it is signed.
(12) Where a mentally disabled person has a Curator or committee who has or may be given authority under any law, to answer the citation on behalf of the mentally disabled person, no person other than that curator or committee shall unless the Court otherwise orders, act as next friend.
(13) A next friend shall not be appointed unless -
(a) he is the person applying for appointment; or
(b) evidence of his consent to act as next friend is furnished.
(14) Where a citation to see proceedings has been served on a disabled person and a next friend of the disabled person is appointed to answer the citation, the appointment shall extend to the next friend electing on behalf of the disabled person to become a defendant in the proceedings in which the citation was served and defending those proceedings (including cross-claiming in them).
58. Application of Order 5 Division 2. (78/59)
Where a disabled person elects by his next friend to become a defendant in the proceedings in which the citation was served, Order 5 Division 2 (disability) applies as if his next friend had been appointed as provided by that Division.
59. Proof of service of citation to see. (78/60)
A party at whose request a citation to see proceedings has been issued shall not, without the leave of the Court, be entitled to be heard at the hearing or trial of the proceedings unless he has furnished evidence on affidavit -
(a) that the person cited has not been served with the citation; or
(b) where the person cited has not given a notice of intention to defend the proceedings-that the citation has been served on him.
Division 10.-Caveats.
60. Caveat in respect of grant. (78/61)
(1) A person claiming to have an interest in an estate may lodge in the Registry a caveat in Form 95 in respect of any grant or reseal being made in the estate.
(2) The caveat shall state fully the nature of the interest claimed by the caveator and an address for service.
(3) Where a person, to the knowledge of the caveator, is making or is intending to make application for a grant or resealing in the estate, the caveator shall, within seven days of the lodging of the caveat. serve a copy of the caveat on him.
61. Caveat for solemn form. (78/62)
(1) A person having an interest in an estate may lodge in the Registry a caveat in Form 96 requiring proof in solemn form of any will.
(2) The caveat shall state fully the nature of the interest of the caveator and an address for service.
(3) Where a person, to the knowledge of the caveator, is making or intending to make application for a grant or reseal in the estate, the caveator shall, within seven days of the lodging of the caveat. serve a copy of the caveat on him.
62. Duration. (78/63)
(1) A caveat shall take effect as of the date of lodgement and shall, unless the Court otherwise orders, remain in force for six months.
(2) The Court may extend the period of duration of a caveat.
63. Leave to withdraw caveat: No proceedings for grant. (78/64)
(1) This Rule applies to an application for leave to withdraw a caveat where there are no proceedings for a grant or resealing in the estate.
(2) The application shall be made by originating summons.
(3) There shall be no defendant in the proceedings for leave.
(4) A draft minute of the order sought shall be lodged with the Registrar before any order is made on the summons.
(5) The order shall be entered.
(6) The order may be entered at any time after the minute of it is signed.
64. Leave to withdraw caveat: Proceedings for grant. (78/65)
(1) This Rule applies to an application for leave to withdraw a caveat where there are proceedings for a grant or resealing in the estate.
(2) Where the caveator has not given notice of his intention to defend the proceedings for grant or resealing, he shall do so.
(3) The application for leave to withdraw the caveat shall be made by motion on notice in the proceedings.
65. Withdrawal. (78/66)
(1) Where leave is given to withdraw a caveat, the caveator may withdraw it by himself or his solicitor writing in the margin of the caveat I withdraw this caveat and dating and signing the endorsement.
(2) Where a caveator withdraws a caveat he shall, within seven days of the withdrawal, serve notice of the withdrawal on any person who, to the knowledge of the caveator, is making or intending to make application for a grant or for resealing in the estate.
66. Recoupment of costs. (78/67)
Where a caveat is withdrawn, and the person on whose application a grant or resealing is made is unable to recover from the caveator costs which the caveator has been ordered to pay to him, that person shall be entitled to be recouped by the estate the amount of the costs properly incurred by him in addition to other costs to which he is entitled out of the estate.
67. Citation of caveator to see proceedings. (78/68)
Where there is in force a caveat requiring proof of a will in solemn form the caveator shall, in proceedings for a grant or for resealing in which the plaintiff seeks to prove a will to which the caveat relates, be cited to see the proceedings.
68. Order that caveats cease to be in force. (78/69)
(1) Where a person intends to apply for a grant or for resealing and there is in force a caveat, or more than one caveat, in respect of any grant or resealing being made in the estate, that person may bring proceedings for an order that the caveat or each of the caveats, cease to be in force in respect of the intended application.
(2) The proceedings shall be commenced by originating summons.
(3) The caveator, or each of the caveators, shall be a defendant in the proceedings.
(4) Where in respect of the caveat or any of the caveats, the Court considers that the evidence does not show -
(a) that the caveator has an interest in the estate or has a reasonable prospect of establishing such an interest; and
(b) some matter occasioning doubts as to whether the grant ought to be made,
the Court may order that the caveat cease to be in force in respect of the intended application.
(5) Order 12 Division 4 (summary disposal) does not apply to the proceedings.
(6) Where the Court does not, pursuant to Sub-rule (4) order that the caveat, or each of the caveats, cease to be in force in respect of the intended application, the Court may give such directions as appear best adapted for the just, quick and cheap determination of the grant or resealing (if any) which should be made in the estate and of related matters.
(7) Directions which the Court may give pursuant to Sub-rule (6) include a direction to a caveator to commence proceedings.
(8) Where the Court pursuant to Sub-rules (6) and (7) directs a caveator to commence proceedings, it may order that if the caveator does not commence the proceedings within such time as the Court fixes, the caveat shall cease to be in force in respect of the intended application referred to in Sub-rule (1) or generally.
(9) An order under Sub-rule (8) may be made at the time the caveator is directed to commence proceedings or at any subsequent time.
69. Proceedings by writ of summons. (78/70)
(1) Where there is in force a caveat in respect of any grant or resealing being made in an estate, proceedings for a grant or for resealing in the estate shall be commenced by writ of summons.
(2) Unless the Court otherwise directs, the caveator shall be a party in the proceedings.
Division 11.-Grant of Probate or Administration on Presumption of
Death.
70. Applications under Section 40 of the Act.
An application under Section 40 of the Act for leave to distribute the estate of a person presumed dead, or for directions under that section, may be made by originating summons.
71. Lodging, withdrawal or removal of caveats.
The lodging, withdrawal and removal of a caveat referred to in Section 40 of the Act shall be governed, with the necessary modifications, by Division 10.
Division 12.-Inventory, Accounts and Commission.
72. Form of inventory.
(1) An inventory required to be exhibited by a personal representative under Section 59 of the Act shall be in Form 97.
(2) The inventory shall be filed and shall be verified by an affidavit in Form 98.
73. Filing accounts.
(1) The account required to be exhibited by a personal representative under Section 59 of the Act shall be in Form 99.
(2) The account shall be filed within 12 months after grant or resealing and shall be verified by an affidavit in Form 100.
74. Order to file or to pass. (78/74)
Proceedings for an order that an executor, administrator or trustee -
(a) file accounts; or
(b) file and pass accounts; or
(c) pass accounts filed,
shall be commenced by originating summons.
75. Commencement of proceedings for passing or commission. (78/75)
(1) Proceedings by an executor, administrator or trustee for -
(a) an order passing his accounts; or
(b) an order passing his accounts and for commission,
shall be commenced by originating summons for a hearing to be appointed.
(2) On the filing of the summons the plaintiff shall obtain from the Registry an appointment to vouch his accounts before an accounts clerk.
76. Notice to be published. (78/76)
(1) At least 14 days before the appointment to vouch his accounts the plaintiff shall cause to be published a notice in Form 101 of the filing of his accounts, the order or orders claimed in the proceedings and the appointment to vouch the accounts.
(2) The notice shall be published in one Port Moresby daily newspaper.
(3) The plaintiff shall file an affidavit of compliance with this Rule.
77. Sureties.
(1) At least 14 days before the appointment to vouch his accounts the plaintiff shall serve on any surety to any administration bond in the estate a copy of the notice referred to in Rule 76(1).
(2) The plaintiff shall file an affidavit of compliance with Sub-rule (1).
(3) Instead of or in addition to complying with Sub-rules (1) and (2) in respect of any surety, the plaintiff may file the consent in the form prescribed of that surety to an order passing the accounts and an affidavit in the form prescribed verifying the consent.
78. Inspection and appearance. (78/78)
(1) Where proceedings have been commenced for an order passing accounts or for an order passing accounts and for commission, and the hearing of the proceedings has not been completed, any person may -
(a) unless the Registrar otherwise directs-inspect the accounts without the leave of the Court; and
(b) at any time before the completion of the hearing-give a notice of intention to defend the proceedings.
(2) A person giving a notice under Sub-rule (1) shall be a defendant in the proceedings.
79. Vouching. (78/79)
(1) On the day appointed under Rule 75(2) and afterwards as convenient the accounts clerk shall proceed with the vouching before him of the accounts where-
(a) the plaintiff has complied with the rules; or
(b) the Registrar directs him to proceed.
(2) Where the accounts clerk does not proceed with the vouching of the accounts, the plaintiff shall obtain from the Registry a further appointment to vouch his accounts.
80. Procedure and vouching. (78/80)
(1) The plaintiff may vouch his accounts in person, by his solicitor, or by any person authorized by the solicitor.
(2) Any person, whether or not he is a defendant in the proceedings, may attend on the vouching of the accounts unless the Court, of its own motion, otherwise orders.
(3) The accounts clerk may permit any person to ask, through him, any question relevant to the vouching of the accounts.
(4) Where the vouching of the accounts is not concluded on the day appointed, the accounts clerk, subject to any direction by the Registrar, may decline to proceed with the vouching at any time of which reasonable notice has not been given to any person interested.
81. Certificate. (78/81)
(1) On the conclusion of the vouching, the accounts clerk shall inform the plaintiff of matters necessary for preparation by the plaintiff of a draft minute of a certificate by the accounts clerk of the vouching of the accounts.
(2) The certificate vouching the accounts shall certify as to -
(i) the correctness of the accounts; and
(ii) the amount of capital realised during the period of the accounts; and
(iii) the amount of income collected during the period of\ the accounts; and
(iv) the value of any assets transferred to beneficiaries during the period of the accounts; and
(v) where a business was carried on, the gross receipts and net profit earned or loss incurred during the period of the accounts; and
(vi) any other information which the Registrar has directed the accounts clerk to obtain.
(3) The plaintiff shall lodge the draft minute with the accounts clerk.
(4) The accounts clerk shall sign a correct minute of his certificate. 82. Filing of minute of certificate. (78/82)
Within 14 days of the signing by the accounts clerk of a minute of his certificate, the plaintiff shall file the minute.
83. Uncontested proceedings for passing of accounts. (78/83)
(1) This Rule applies where -
(a) there is no defendant in the proceedings; and
(b) the plaintiff does not seek commission.
(2) The proceedings may be heard -
(a) in the absence of the public; and
(b) without the appearance before the Court of any person.
(3) The proceedings shall be heard without an appointment being obtained for the hearing.
(4) Order 4 Division 4 (originating summons) does not apply.
84. Appointment for hearing. (78/84)
Except where Rule 83 applies, the plaintiff shall, on filing the minute of the certificate of the accounts clerk, obtain from the Registry an appointment for hearing of the proceedings.
85. Affidavits in support of commission. (78/85)
Where the plaintiff seeks commission he shall file -
(a) an affidavit in support of the application; and
(b) where the accounts were not filed within the time fixed by the Rules or any order of the Court-an affidavit explaining the delay.
86. Notice. (78/87)
The Court may order the plaintiff to give notice of the proceedings to any person.
87. Review. (78/88)
(1) Where the proceedings are heard by the Registrar, any party may apply to the Court for review of any order made by the Registrar on the hearing.
(2) The Court may make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit.
(3) An application for review shall be made within 20 days of the date of the order in respect of which the review is sought.
Division 13.-Administration of Small Estates.
88. Application to Distributor for assistance.
(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.
89. Applicant to give information to Distributor.
An applicant under Rule 88 shall give the Distributor such information in his knowledge as the Distributor may request.
90. Person dissatisfied with act of Distributor.
(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.
91. Fees payable to Distributor.
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.
92. Appeals from courts of summary jurisdiction.
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).