Probate Act

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1. Short title.
2. Interpretation.
3. Value of estate.
4. Notice to executors.
5. Inquiries.
6. Revocation or alteration.
7. Original will.
8. Testamentary papers to be deposited in Court.
9. Intestacy.
10. Several next-of-kin.
11. Property of intestate to be vested in Court until administration granted.
12. Crown to take unclaimed estate.
13. Registrar of Supreme Court may administer.
14. Estate not exceeding $500 in value.
15. Orders for performance of duties by executors or administrators.
16. Distribution of estate.
17. Penalty.
18. Property disposable by will.
19. Capacity to make will.
20. Formalities for execution.
21. Testamentary execution of power.
22. Incompetency of witness.
23. Gift to witness.
24. Attestation by creditor.
25. Attestation by executor.
26. Marriage of testator.
27. Alteration in circumstances.
28. Revocation generally.
29. Alteration after execution.
30. Revival of revoked will.
31. Subsequent conveyance or acts.
32. Will speaks from death.
33. Lapsed and void gifts.
34. Lapsing of gifts to issue.
35. General rules of construction.
36. Application.
37. Property of a deceased person.
38. Money owing to a deceased person by the Government.
39. Foreign probates etc.
40. Application for resealing.
41. Sureties for due administration.
42. Other conditions for resealing.
43. Effect of resealed grant.
44. Notice of resealing.

Acts Nos. 4 of 1915, 7 of 1946, 11 of 1948,
15 of 1974, 4 of 1975, 12 of 1987.

Value of estate
3. The Court shall ascertain the value of the property of the deceased as correctly as the circumstances allow.

Notice to executors
4. The Court may of its own motion or on the application of any person claiming an interest under a will give notice to the executors (if any) named therein to come into Court and prove the will or to renounce probate.

Inquiries.
5. The Court may refuse to issue probate or letters of administration until all inquiries which the Court sees fit to institute have been answered to its satisfaction.

Revocation or alteration.
6. Revocation or alteration of a grant of probate or administration may be made for reasons to be recorded.

7. Every original will which has been proved in the Court shall be kept and filed in the Supreme Court.

Testamentary papers to be deposited in Court.
8. Any person having in his possession or under his control any paper or writing of a deceased person being or purporting to be testamentary shall forthwith deliver the original to the Court and deposit it there. Any person neglecting to do so for 14 days after having knowledge of the death of the deceased shall be liable to such penalty not exceeding $500 as the Court may think fit to impose.

Intestacy.
9. The Court in granting letters of administration shall proceed as far as may be as in cases of probate.

Several next-of-kin.
10. When administration is applied for by one of some of the next of kin only there being another or other next of kin equally entitled of kin thereto, the Court may require proof that notice of the application has been given to the other next of kin.

11. From the death of an intestate until administration be granted his personal property shall be vested in the

Crown to take unclaimed estate.
12. If within 3 years of the date of any estate having become vested in the Court as provided by section 11 of this Act no claimant or other person has been found to be the next of kin to the deceased or to have established a right to the property, the proceeds of such estate shall become the property of the Crown and shall be paid into general revenue.

Provided that in such cases as above His Majesty in Council may instruct that instead of the proceeds of the estate being paid into general revenue, the Court grant letters of administration to any person entitled to such grant or to any person illegitimately descended from the deceased.

Registrar of Supreme Court may administer.
13. The Registrar of the Court shall have power to administer estates and if so appointed by the Court shall act under the direction of the Court and shall be indemnified thereby.

Estate not exceeding $500 in value.
14. Where it appears to the Court that the value of the property of a deceased person does not exceed $500 the Court may without any probate or letters of administration or other formal proceedings pay thereout any debts due by the deceased or any charges and pay the surplus (if any) to such person as may be entitled and shall not be liable to any action or claim in respect of anything done under this Act.

Orders for performance of duties by executors or administrators.
15. The Court may of its own motion or on the application of any interested party or creditor issue a summons requiring the executors or administrators to attend and show cause why an order for the administration of the property of the deceased shall not be made.

Distribution of estate.
16. The widow shall inherit the dwelling house on the town allotment (and if more than one the Court shall decide which one shall go to the widow), the growing crops, pigs and poultry and ngatu whether the deceased left a will or not but the rest of the property of an intestate shall be divisible according to Schedule I hereto.

Penalty.
17. Any person who refuses or neglects to obey an order of the Court shall be liable to a fine not exceeding $500 or in default of payment to imprisonment not exceeding 6 months as the Court may decide.

Property disposable by will.
18. Subject to this Act, every person may dispose, by will executed in accordance with this Act, of all property owned by him at the time of his death, and which, if not disposed of, would fall within his estate to be distributed in accordance with this Act.

Capacity to make will.
19. To be valid a will shall be made by a person who-

(b) signed at the foot or end thereof by the testator or by some other person in his presence and by his direction, in accordance with subsection (2).

(2) The signature of the testator or other person mentioned in sub-section (1)(b) is effective-

(a) only if made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, such witnesses attesting and subscribing the will in the presence of the testator;

(3) No particular form of attestation is necessary, nor is it necessary for the witnesses to sign in the presence of each other, nor is publication of the will necessary.

(4) So far as regards the position of the signature of the testator, or of the person signing for him-

(a) a will is valid if the signature is so placed at, after, following, under, beside or opposite the end of the will that it is apparent on the face of the will that the testator intended to give effect, by such signature, to the writing signed as his will;

(i) the signature does not follow, or is not immediately after, the foot or end of the will;

(ii) a blank space intervenes between the concluding word of the will and the signature;

(iii) the signature is placed among the words of the testimonium clause or of the clause of attestation, or follows or is after or under the clause of attestation, either with or without a blank space intervening, or follows or is after, under or beside the names or one of the names of the subscribing witnesses;

(iv) the signature is on a side, page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will is written above the signature; or

(v) there appears to be sufficient space to contain the signature on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written,

and the enumeration of the above circumstances does not restrict the generality of this subsection; but no signature under this section operates to give effect to any disposition or direction which is underneath or follows it, nor does it give effect to any disposition or direction inserted after the signature is made.

(5) No person is a competent witness to the execution of a will if he attests the will in any manner other than by signing his name in his own handwriting.

Testamentary execution of power.
21. (1) No appointment made by will in the exercise of any power, is valid unless it is executed in accordance with section 20 or the Form of Testamentary Dispositions Act.

(2) Subsection (1) applies notwithstanding anything to the contrary in the instrument creating the power.

(3) A will executed in accordance with section 20 or the Form of Testamentary Dispositions Act is, so far as respects the execution and attestation thereof, a valid execution of a power of appointment by will, notwithstanding that the instrument creating the power expressly requires that a will made in exercise of such power should be executed with some additional or other form of execution or formality.

Incompetency of witness.
22. Subject to section 20(5), if any person who attests the execution of a will is, at the time of the execution, or becomes at any time afterwards, incompetent as a witness to prove the execution, the will is not invalid on that account.

Gift to witness.
23. (1) Subject to subsection (2), if a person who attests the execution of a will is a person to whom any interest. Is given by the will (whether by way of gift or by way of exercise of a power of appointment, but other than and except charges and directions for the payment of debts), the gift or appointment is void, so far as it concerns such an attesting witness or any person claiming under the witness; but the attesting witness is competent as a witness to prove the execution, or to prove the validity or invalidity of the will, notwithstanding the gift or appointment mentioned in the will.

(2) Attestation of a will by a person to whom or to whose spouse there is given or made any such disposition as is described in subsection (1) shall be disregarded if the will is duly executed without his attestation and without that of any other such person.

(3) This section applies to the will of any person dying after the passing of the Probate (Amendment) Act 1987, whether executed before or after the passing of that Act.

Attestation by creditor.
24. If a will charges any property with any debt, and-

attests the execution, such an attesting witness is competent, notwithstanding the charge, as a witness to prove the execution or to prove the validity or invalidity of the will.

Attestation by executor.
25. No person is incompetent, on account of his being an executor of a will, as a witness to prove the execution or to prove the validity or invalidity of the will.

Alteration in circumstances.
27. No will is revoked by any presumption of an intention on the ground of an alteration in circumstances.

Revocation generally.
28.No will, or any part thereof, is revocable otherwise than-

(b) by some writing, declaring an intention to revoke the will, executed in the manner in which a will is required to be executed; or

(c) by the testator, or some person in his presence and by his direction, burning, tearing or otherwise destroying the will, with the intention of revoking it.

Alteration after execution.
29. No obliteration, nterlineations or other alteration made in any will, after its execution, is valid, or has any effect so far as the words or effect of the will before the alteration are not apparent, unless the alteration is executed in the manner in which a will is required to be executed; but the will, with alteration as part of it, is duly executed if the signature of the testator and the subscription of the witnesses are made in the margin, or on some other part of the will opposite or near the alteration, or at the foot or end of or opposite a memorandum referring to the alteration and written at the end or some other part of the will.

Revival of revoked will.
30. (1) No will, or any part thereof, which has been revoked, is revived otherwise than by-

(2) Where any will, which has been first, partly revoked, and later wholly revoked, is revived the revival does not extend to the part revoked before the revocation of the whole will unless an intention to revive that part is shown.

Subsequent conveyance or acts
31. No conveyance or other act, made or done subsequently to the execution of a will, of or relating to any property referred to in the will (except an act which revokes the will in accordance with section 28) prevents the operation of the will with respect to any interests in that property of which the testator has power to dispose by will at the time of his death.

Will speaks from death
32. Every will shall be construed, with reference to the property referred to in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.

Lapsed and void gifts
33. Unless a contrary intention appears from the will, if a testamentary gift fails or is void by reason of the death of the beneficiary in the lifetime of the testator, by reason of being contrary to law or otherwise, any property comprised or intended to be comprised in that gift is deemed to fall into residue, if any, contained in the will.

Lapsing of gifts to issue
34. Where property is bequeathed to a child or other issue of the testator, for property or an interest not determinable at or before the death of the legatee, and-

(b) the issue or any thereof are living at the time of the death of the testator,

the bequest does not lapse, but takes effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears from the will.

General rules of construction
35. (1) Extrinsic evidence is admissible to show the intention of the testator and to assist in the construction of or to explain any contradiction in a will.

(2) If the purport of a testamentary gift admits of more than one interpretation, then, in the case of doubt, the interpretation according to which the gift will be operative shall be preferred.

Application
36. (1) The provisions of sections 18 to 36 (inclusive) apply to wills made before or after the commencement of the Probate (Amendment) Act 1987,* whether the testator dies before or after the commencement.

(2) Every will which is re-executed, republished or revived by codicil is, for the purposes of this Act, made at the time of the re-execution, republication or revival.

Property of a deceased person
37. Any person taking or dealing with the property of a deceased person before the Court has adjudicated thereon shall be liable to a fine not exceeding $500 recoverable by distress and the conviction of a person under this section is no bar to the prosecution of the person for any other criminal offence.

Money owing to a deceased person by the Government
38. Should the Government owe any money to a deceased person to a deceased whether in the employ of the Government or not such money shall not be paid over until the estate has been adjudicated upon by the Court.

Foreign probates etc.
39. An original grant of probate or letters of administration or its equivalent, issued by the Superior Court of a foreign or Commonwealth country, or a sealed duplicate or certified copy thereof, may be
resealed by the Court provided that-

(a) The grant, any will to which the grant relates, and any other accompanying documents are produced to and a duplicate copy of the same are deposited with the Court;

(i) are in the English language or a duly certified translation into English is attached thereto;

(iii) are sealed with the duly authenticated seal of the Court issuing the same;

(d) The due administration of the grant would not be contrary to any of the laws of Tonga;

(e) Any order of the Court for the provision of sureties has been complied with;

(f) Unless otherwise ordered by the Court the grant is made by the Court having jurisdiction at the place where the deceased died domiciled;

(g) The application for resealing is made to the Court by or on behalf of the person or persons to whom the grant was made;

(j) All the terms and conditions imposed by the Court and this Act have been complied with.

Application for resealing
40. The application for resealing must be supported by an affidavit on oath sworn by the applicant.

Sureties for due administration
41. The Court may require as a condition of resealing a grant that one or more sureties shall guarantee that they will make good within any limit imposed by the Court on their total liability, any loss which any person interested in the estate in Tonga may suffer in consequence of a breach of duty by the person or persons administering the estate in Tonga.

Other conditions for resealing
42. The Court may impose such other terms and conditions regarding the resealing of a grant as it deems reasonable.

Effect of resealed grant
43. A grant resealed under the provisions of this Act shall have the same effect and, subject to section 42, shall be subject to the same laws as a grant issued by the Court.

Notice of resealing
44. Notice of the resealing of a grant shall be sent by the Court to the Court which issued the original grant.

If the deceased dies leaving	His representatives shall take in the following proportions
1. Widow only	All to widow.
2. Widow and child or children	One-third to widow two-thirds to children in equal shares. In the case of deceased children who have left issue such issue shall take amongst them their deceased parent's share.
3. Widow and Father	All to widow.
4. Widow and mother, no father	All to widow.
5. Widow brothers or sisters	All to widow.
6. Widow mother nephews or nieces	All to widow.
7. Husband with children	All to husband.
8. Husband without children	All to husband.
9. Father, brothers and sisters	All to father.
10. Mother, brothers and sisters	All equally.
11. Mother but no other kin	All to mother.
12. Child, children of grandchildren by deceased child	Amongst children in equal shares, the grandchildren by deceased children taking amongst them their deceased parent's share.
13. Brother or sister and nephews or nieces	Amongst brothers or sisters in equal shares the children of deceased brothers or sisters taking amongst them their deceased parent's share.
14. Brother or sister or grandfather	All to brother or sister.
15. Brother or sister and uncles or aunts	All to brother or sister.
16. Grandfather no nearer relation	All to grandfather.
17. Father's father and mother's mother	Equally to both.
18. Grandmother uncles and aunts	All to grandmother.
19. Great-grandfather uncles and aunts	All equally.
20. Uncles and aunts	All equally.
21. Uncle and deceased uncle's child	All to uncle.
22. Uncle by mother's side and deceased uncle or aunt's child	All to uncle.
23. Aunts nephew and niece	All equally.
24. Cousins	All equally.

Tonga Consolidated Legislation

Probate Act