In the matter of the proceeds(1987)

POHNPEI SUPREME COURT REPORTS

VOL. 2

[2 P. S. Ct. R 416]

IN THE MATTER OF THE PROCEEDS

OF LIFE INSURANCE OF NICHIMA ORLANDO,
Deceased

AIFEN ORLANDO,

Petitioner

Pohnpei Civil Action No. 112-87

Trial Division of the Pohnpei Supreme Court

July 27, 1987

Petition by widow of decedent to be named the beneficiary of a certain life insurance policy taken by the deceased with the Moylan Insurance Company, Pohnpei Branch. The deceased who was survived by his wife and a minor they jointly adopted purported to designate the petitioner as the beneficiary of his insurance policy, but there was no written instrument to that effect. There was however evidence by the brother of the deceased that some weeks prior to the decedent's death he made a verbal statement to his brother that the proceeds of his insurance policy should be given to his wife, the petitioner. The proceeds of the policy exceeded $12,000.

The Trial Division of the Pohnpei Supreme Court, JUDACH C. JOHNNY, Associate Justice, denying the petition, held that the statement making the gift having been made without a second witness and the proceeds of the policy payable to the beneficiary being in the aggregate in excess of the maximum aggregate value allowed under 13 TTC 7 to dispose of a nuncupative will, the Court was without power to grant the relief sought by the petitioner.

1. Wills - Nuncupative Wills

An oral will is a nuncupative will.

2. Wills - Nuncupative Wills

The application of a nuncupative will is governed by 13 TTC 7 which continues to apply in Pohnpei.

3. Wills Nuncupative Wills

A nuncupative will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if th e testator dies as a result of the impending peril. (13 TTC 7)

[2 P. S. Ct. R 417]

4. Wills - Nuncupativs Wills - Conditions

"...a nuncupative will must be:

(a) Declared to be his w111 by the testator before two disinterested witnesses; and

(b) Submitted for probate within six months attar the death of the testator unless the Court, for good cause, permits it to be submitted later." (13 TTC 7)

5. Wills - Nuncupative Wills

A nuncupative will made under 13 TTC 7 may dispose of personal property only and to an aggregate value not exceeding one thousand dollars.

6. Wills - Nuncupative Wills

A nuncupative will neither revokes nor changes an existing written will. (13 TTC 7)

7. Succession - Intestacy

Where decedent is purported to have made a device of property under a nuncupative will which fails for want of statutory requirements the property falls into intestacy and its devolution comes within the Inestate Succession Law, D.L. 4L-155-78.

JUDAH C. JOHNNY, Associate Justice

This matter came on regularly to be heard before me on July 21,1887, at Kolonia, State of Pohnpei. The petitioner appeared in the company of Johan Orlando, and Sungiwo Hadley as counsel.

The petitioner in this matter seeks judgment of this Court naming her the beneficiary of a certain life insurance policy,

[2 P. S. Ct. R 418]

established by Nichima Orlando, at the Moylan Insurance Company, Pohnpei Branch. The petitioner is the widow of Nichima Orlando. See In the Matter of Confirmation of Marriage by Aifen Orlando. Pohnpei Civil Action No. 183-86.

From the evidence adduced at the hearing, I find that Nichima Orlando died on Pohnpei in the month of July, 1986. He is survived by his wife, the petitioner, and a minor whom he and his wife joined in adopting. Nichima Orlando purported to designate Aifen Orlando as the beneficiary of his insurance policy. There is no written instrument to that effect.

The petitioner stands on the testimony of Johan Orlando, brother of the deceased, to the effect that Nichima Orlando, about two weeks prior to his death made a verbal will to Johan that the proceeds of his insurance policy should be given to his wife, the petitioner. Under that statement, the petitioner has applied to the insurance company to receive the insurance proceeds. The company requires a court order authorizing release.

[1-6] An oral will is a nuncupative will. The application of a nuncupative will is governed by Title 13, Section 7 of the Code of the Trust Territory of the Pacific Islands, which continues to apply

[2 P. S. Ct. R 419]

in this State. Under the section, a nuncupative will may be made only by a person in imminent peril of death, whetherfrom illness or otherwise, and shall be valid only if the testator dies as a result of the impending peril. Some strict conditions are required by the section, stating,

"...a nuncupative will must be:

(a) Declared to be his will by the testator before two disinterested witnesses; and

(b) submitted for probate within six months after the death of the testator unless the court, for good cause, permits it to be submitted later."

The statute requires that a nuncupative will made under it may dispose of personal property only and to an aggregate value not exceeding one thousand dollars. It also provides that a nuncupative will neither revokes nor changes an existing written will. This court is satisfied that, on the question of imminent peril of death, the deceasedknewthathewasdying. He thereforehadhisbrother go to Truk, where he was critically ill, to take him and return him to Pohnpei where his family members were. At Trek, he made a statement of his desire to designate his wife Aifen as beneficiary to the life insurance policy. He repeated his testament two weeks prior to his death, and he subsequently died without intermediate

[2 P. S. Ct. R 420]

recovery. Under the circumstance, I believe it may be properly presumed that he died from the same illness under which he made the statement, and under similar imminent peril of death. This meets one test of the law. The statement was made to his brother Johan Orlando, a disinterested witness without a second witness. This fails the other test of the law. The amount of money involved under the policy is equivalent to about $8,028.80. The proceeds when payable to the beneficiary will be the product of the face value multiplied by one and a half percent. Clearly this will exceed $12,000. Thus, the aggregate value of this insurance policy exceeds the maximum aggregate value allowed under 13 TTC 7 to dispose of a nuncupative will.

[7] In consideration of above, it is my view that this Court is without power to grant the relief sought by the petitioner. It would appear under these circumstances, that with respect to his insurance policy, Nichima Orlando died intestate. Consequently, the law of intestate (DL 4L-155-78) applies.

The petition of Aifen Orlando is denied without restriction to file under the intestate law.

It is Ordered.


	POHNPEI SUPREME COURT REPORTS VOL. 2 [2 P. S. Ct. R 416] IN THE MATTER OF THE PROCEEDS OF LIFE INSURANCE OF NICHIMA ORLANDO, Deceased AIFEN ORLANDO, Petitioner Pohnpei Civil Action No. 112-87 Trial Division of the Pohnpei Supreme Court July 27, 1987 Petition by widow of decedent to be named the beneficiary of a certain life insurance policy taken by the deceased with the Moylan Insurance Company, Pohnpei Branch. The deceased who was survived by his wife and a minor they jointly adopted purported to designate the petitioner as the beneficiary of his insurance policy, but there was no written instrument to that effect. There was however evidence by the brother of the deceased that some weeks prior to the decedent's death he made a verbal statement to his brother that the proceeds of his insurance policy should be given to his wife, the petitioner. The proceeds of the policy exceeded $12,000. The Trial Division of the Pohnpei Supreme Court, JUDACH C. JOHNNY, Associate Justice, denying the petition, held that the statement making the gift having been made without a second witness and the proceeds of the policy payable to the beneficiary being in the aggregate in excess of the maximum aggregate value allowed under 13 TTC 7 to dispose of a nuncupative will, the Court was without power to grant the relief sought by the petitioner. 1. Wills - Nuncupative Wills An oral will is a nuncupative will. 2. Wills - Nuncupative Wills The application of a nuncupative will is governed by 13 TTC 7 which continues to apply in Pohnpei. 3. Wills Nuncupative Wills A nuncupative will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if th e testator dies as a result of the impending peril. (13 TTC 7) [2 P. S. Ct. R 417] 4. Wills - Nuncupativs Wills - Conditions "...a nuncupative will must be: (a) Declared to be his w111 by the testator before two disinterested witnesses; and (b) Submitted for probate within six months attar the death of the testator unless the Court, for good cause, permits it to be submitted later." (13 TTC 7) 5. Wills - Nuncupative Wills A nuncupative will made under 13 TTC 7 may dispose of personal property only and to an aggregate value not exceeding one thousand dollars. 6. Wills - Nuncupative Wills A nuncupative will neither revokes nor changes an existing written will. (13 TTC 7) 7. Succession - Intestacy Where decedent is purported to have made a device of property under a nuncupative will which fails for want of statutory requirements the property falls into intestacy and its devolution comes within the Inestate Succession Law, D.L. 4L-155-78. JUDAH C. JOHNNY, Associate Justice This matter came on regularly to be heard before me on July 21,1887, at Kolonia, State of Pohnpei. The petitioner appeared in the company of Johan Orlando, and Sungiwo Hadley as counsel. The petitioner in this matter seeks judgment of this Court naming her the beneficiary of a certain life insurance policy, [2 P. S. Ct. R 418] established by Nichima Orlando, at the Moylan Insurance Company, Pohnpei Branch. The petitioner is the widow of Nichima Orlando. See In the Matter of Confirmation of Marriage by Aifen Orlando. Pohnpei Civil Action No. 183-86. From the evidence adduced at the hearing, I find that Nichima Orlando died on Pohnpei in the month of July, 1986. He is survived by his wife, the petitioner, and a minor whom he and his wife joined in adopting. Nichima Orlando purported to designate Aifen Orlando as the beneficiary of his insurance policy. There is no written instrument to that effect. The petitioner stands on the testimony of Johan Orlando, brother of the deceased, to the effect that Nichima Orlando, about two weeks prior to his death made a verbal will to Johan that the proceeds of his insurance policy should be given to his wife, the petitioner. Under that statement, the petitioner has applied to the insurance company to receive the insurance proceeds. The company requires a court order authorizing release. [1-6] An oral will is a nuncupative will. The application of a nuncupative will is governed by Title 13, Section 7 of the Code of the Trust Territory of the Pacific Islands, which continues to apply [2 P. S. Ct. R 419] in this State. Under the section, a nuncupative will may be made only by a person in imminent peril of death, whetherfrom illness or otherwise, and shall be valid only if the testator dies as a result of the impending peril. Some strict conditions are required by the section, stating, "...a nuncupative will must be: (a) Declared to be his will by the testator before two disinterested witnesses; and (b) submitted for probate within six months after the death of the testator unless the court, for good cause, permits it to be submitted later." The statute requires that a nuncupative will made under it may dispose of personal property only and to an aggregate value not exceeding one thousand dollars. It also provides that a nuncupative will neither revokes nor changes an existing written will. This court is satisfied that, on the question of imminent peril of death, the deceasedknewthathewasdying. He thereforehadhisbrother go to Truk, where he was critically ill, to take him and return him to Pohnpei where his family members were. At Trek, he made a statement of his desire to designate his wife Aifen as beneficiary to the life insurance policy. He repeated his testament two weeks prior to his death, and he subsequently died without intermediate [2 P. S. Ct. R 420] recovery. Under the circumstance, I believe it may be properly presumed that he died from the same illness under which he made the statement, and under similar imminent peril of death. This meets one test of the law. The statement was made to his brother Johan Orlando, a disinterested witness without a second witness. This fails the other test of the law. The amount of money involved under the policy is equivalent to about $8,028.80. The proceeds when payable to the beneficiary will be the product of the face value multiplied by one and a half percent. Clearly this will exceed $12,000. Thus, the aggregate value of this insurance policy exceeds the maximum aggregate value allowed under 13 TTC 7 to dispose of a nuncupative will. [7] In consideration of above, it is my view that this Court is without power to grant the relief sought by the petitioner. It would appear under these circumstances, that with respect to his insurance policy, Nichima Orlando died intestate. Consequently, the law of intestate (DL 4L-155-78) applies. The petition of Aifen Orlando is denied without restriction to file under the intestate law. It is Ordered.