Second Session, 46th General Assembly
58 Elizabeth II, 2009
AN ACT RESPECTING THE PUBLIC TRUSTEE
Received and Read the First Time...................................................................
HONOURABLE THOMAS W. MARSHALL, Q.C.
Minister of Justice and Attorney General
Ordered to be printed by the Honourable House of Assembly
This Bill would repeal and replace
the Public Trustee Act to reflect the
current realities of the administration of estates in the province. It would
transfer the responsibility and the organizational framework associated with
the administration of estates from the Supreme Court of Newfoundland and
This change would create a structure
consistent with the other common law jurisdictions of
AN ACT RESPECTING THE PUBLIC TRUSTEE
1. Short title
3. Office of public trustee
4. Powers and duties of public trustee
5. Procedure - missing persons
6. Declaration of missing person
7. Payments on behalf of missing person
8. Charitable trust
9. Acceptance and execution of trusts
10. Consolidated trust fund
11. Administration fund account
12. Delivery up of property
13. Administration of small estates
14. Unclaimed money
16. Compensation of public trustee
17. Persons entitled to money
19. Investment of money
20. Discharge of liability of public trustee
21. Public trustee's accounts
22. Special reserve fund
24. Fees and forms
25. Jurisdiction of court
27. RSNL1990 cE-11 Amdt.
28. RSNL1990 cL-14 Amdt.
29. RSNL1990 cM-10 Amdt
30. RSNL1990 cT-10 Amdt.
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. This Act may be cited as the Public Trustee Act, 2009.
2. In this Act,
(a) "administration fund account" means the administration fund account established by the public trustee under this Act;
(b) "charitable trust" means a trust raised for benevolent, educational, cultural, charitable, religious or other similar purposes;
(c) "consolidated trust fund" means a trust fund into which the public trustee deposits money received on behalf of a person, estate or trust under this or another Act, a regulation under this or another Act, a court order, or another instrument or document;
(d) "deputy public trustee" means the deputy public trustee appointed under this Act;
(e) "fiscal year" means from April 1 in a year to March 31 in the next year;
(f) "judge" means a judge of the Trial Division;
(g) "mentally disabled person" means a mentally disabled person as defined in the Mentally Disabled Persons' Estates Act;
(h) "minister" means the minister appointed under the Executive Council Act to administer this Act;
(i) "missing person" means a person who cannot be found after all reasonable efforts have been made to locate him or her;
(j) "public trustee" means the public trustee appointed under this Act and includes the deputy public trustee or another person acting in the place of the public trustee; and
(k) "special reserve fund" means the special reserve fund established in accordance with the regulations.
Office of public trustee
3. (1) There is established the office of the public trustee which is a corporation.
(2) The Corporations Act shall not apply to the corporation established under subsection (1).
(3) The head office of the corporation shall be established in the province.
(4) The Lieutenant-Governor in Council shall appoint a person as the public trustee.
(5) The Lieutenant-Governor in Council may appoint a person to be deputy public trustee to act in the place of the public trustee in the case of his or her illness or absence from office or of a vacancy in the office and while so acting the deputy public trustee has the powers and shall perform the duties of the public trustee.
(a) the public trustee is ill and unable to fulfill his or her duties; or
(b) the office of the public trustee is vacant,
and there is no deputy public trustee, the Lieutenant-Governor in Council may appoint a person to act in the place of the public trustee until a public trustee or deputy public trustee is appointed, or the public trustee is able to resume his or her duties.
(7) For administration purposes, the public trustee shall report to the minister with respect to matters contained in this Act.
(8) The public trustee may appoint or employ those officers, inspectors, clerks, employees, or other persons necessary for the administration of this Act.
(9) The public trustee and employees of the corporation shall be considered to be employed in the public service for the purposes of the Public Service Pensions Act, 1991 and the Public Service Collective Bargaining Act shall apply to employees of the corporation.
Powers and duties of public trustee
4. (1) The public trustee has the powers and shall discharge the duties given to or imposed upon him or her by this Act or another Act or by the Lieutenant-Governor in Council.
(2) The public trustee may
(a) either alone or jointly with another person accept and carry out a trust where he or she is appointed for that purpose
(i) in the instrument creating the trust, or
(ii) after the creation of the trust with the consent of the majority of the persons beneficially interested in the trust;
(b) act as the administrator of estates or executor under a will;
(c) act as custodian of property of prisoners and deceased persons;
(d) act as the guardian of the estate of mentally disabled persons under the authority of the Mentally Disabled Persons Estates Act;
(e) act as guardian in an action in court respecting the estate of a minor, a mentally disabled person or a deceased person;
(f) act as guardian of the estate of a minor committed to the continuous custody of a director under the Child, Youth and Family Services Act;
(g) where no person has been appointed guardian by the issue of letters of guardianship, act as guardian or custodian of the estate of a minor
(i) who has property vested in him or her, or
(ii) who is entitled either immediately or after an interval either certainly or contingently to property under an intestacy or under a will, settlement, trust deed or in another manner;
(h) act as an attorney under an enduring power of attorney;
(i) receive money paid into court on behalf of a minor under the authority of section 52 of the Life Insurance Act;
(j) receive money under the authority of section 48 of the Trustee Act; and
(k) act in another capacity and do other acts, matters and things that the public trustee is authorized or required to do by order of a judge.
Procedure - missing persons
5. Where it is brought to the attention of the public trustee that a person appears to be a missing person, the public trustee may, after an investigation
(a) take possession of the lands, money, personal estate and effects of the missing person; and
(b) safely keep, preserve and protect the lands, money, personal estate and effects pending an order of a judge.
Declaration of missing person
6. (1) Where it is proven to the satisfaction of a judge that a person is a missing person, the judge may
(a) declare the person to be a missing person; and
(b) by order, appoint the public trustee as trustee of the property of the missing person.
(2) The public trustee may, on the order of a judge, mortgage, lease, sell or otherwise dispose of any of the real or personal property of a missing person.
Payments on behalf of missing person
7. (1) The public trustee may, without a further order of the judge, pay, out of the capital or income of the property of a person declared to be a missing person,
(a) sums of money that the missing person might otherwise have been liable to pay; and
(b) payments and allowances that are necessary for the support or maintenance of
(i) a spouse, partner, child or reputed child of the missing person, or
(ii) another relative or reputed relative of the missing person dependent on the missing person for support.
(2) The public trustee shall not make a distribution of the estate of a missing person, otherwise than as provided in subsection (1), until the expiration of 2 years from the time when the person was declared to be a missing person, and then only when directed to do so by an order of a judge.
(3) In subsection (1), "spouse" and "partner" have the meaning assigned to them in the Family Law Act.
8. (1) The public trustee may accept and administer a charitable trust.
(2) Where a charitable trust has been established and
(a) the donors to that trust; or
(b) the beneficiaries of that trust
so request, and where the matter is in the public interest, the public trustee may apply to a judge to administer that charitable trust.
(3) A judge may, by order, direct that the public trustee administer a charitable trust on the terms and conditions the judge considers appropriate, and the public trustee shall comply with that order.
Acceptance and execution of trusts
9. (1) The public trustee may be granted letters probate or letters of administration, and, with his or her consent in writing, may be appointed trustee of a will or settlement or other instrument creating a trust or duty in the same manner as if he or she were a private trustee.
(2) The public trustee may be appointed sole trustee although the trust instrument contemplates 2 or more trustees, and a person who is a trustee with the public trustee may retire from the trust upon the passing of his or her accounts by the Trial Division and paying over the balance.
Consolidated trust fund
10. (1) The public trustee shall establish and maintain one or more consolidated trust fund accounts.
(2) The public trustee shall deposit in a consolidated trust fund account the money received by the public trustee on behalf of a person, estate or trust under this or any other Act, regulation under this or another Act, court order or another instrument or document.
(3) Money in a consolidated trust fund account is not public money for the purpose of the Financial Administration Act.
(4) The interest rate payable on the consolidated trust funds shall be prescribed by the minister upon the recommendation of the public trustee, and the amount of interest shall be calculated upon the minimum monthly balance of the money in the respective consolidated trust funds.
(5) The interest rate prescribed by the minister under subsection (4) may be a fixed rate of interest or may be an interest rate that is related to the interest rate earned by the consolidated trust funds or to another interest rate of general application.
(6) The public trustee shall credit the interest at the rate prescribed and calculated under subsection (4) to the various accounts making up the consolidated trust funds monthly or on another date which an account is paid out by a public trustee.
Administration fund account
11. (1) The public trustee shall pay into a separate account to be established by him or her and to be known as the administration fund account the fees, charges and remuneration and refunds of all expenses and all income of the office of the public trustee of every description.
(2) The Lieutenant Governor in Council may direct payment into the Consolidated Revenue Fund of a balance at the credit of the administration fund account.
(3) A special reserve fund may be established from a surplus in the administration fund account in accordance with the regulations.
Delivery up of property
12. (1) Where the public trustee acting in any capacity holds property of a person who has died and to which that person's personal representative is entitled, the production to the public trustee of
(a) an authenticated copy of the probate of the will of the deceased, the letters of administration of his or her estate, the letters of verification of heirship or the act of curatorship or tutorship granted by a court in another province or foreign state having power to make that grant; or
(b) an authentic copy of the will of the deceased,
where it is in notarial form according to the law of the
is sufficient jurisdiction and authority for the delivering of the property to the personal representative.
(2) When the authenticated copy or other document to the same effect is produced to the public trustee under subsection (1), a true copy of it shall also be deposited with him or her.
Administration of small estates
13. Where the public trustee acting in any capacity holds property not exceeding $10,000 in value, of a person who has died, the public trustee may, on receiving evidence satisfactory to him or her, distribute that property to the person's heirs or personal representative without requiring compliance with section 12.
14. Money received by the public trustee in his or her capacity as public trustee, administrator, guardian, trustee or in another capacity to which, in the opinion of the pubic trustee, following appropriate inquiry
(a) there is no person legally entitled; or
(b) the person legally entitled is either not known or his or her whereabouts are unknown,
may be paid by the public trustee into the Consolidated Revenue Fund.
15. Notwithstanding a rule, practice or law respecting security, it is not necessary for the public trustee to give security for the performance of his or her duty as executor, administrator, trustee, committee or in another office to which the public trustee may be appointed by an order of the court, under an Act or regulation or another capacity.
Compensation of public trustee
16. (1) The public trustee shall be compensated in the manner prescribed by the regulations.
(2) Notwithstanding this or another Act, the public trustee may in connection with an estate or trust administered or managed by him or her make a reasonable charge for a service performed by a member of the staff of his or her office where the service is one for which a charge would be allowed as a disbursement against the estate or trust if performed by a person retained, engaged or employed to perform the service by a private trustee, and every charge shall for the purpose of that estate or trust be considered to be a disbursement.
(3) The public trustee may waive or remit a fee set under the authority of this Act where he or she considers that the imposition of the fee would cause hardship or unfairness in the circumstances.
Persons entitled to money
17. (1) A person who may be entitled to money paid by the public trustee into the Consolidated Revenue Fund may apply to the public trustee for that money.
(2) Where the public trustee accepts an application made under subsection (1), the public trustee shall take the necessary steps to have the money and interest owing to that person paid to him or her from the Consolidated Revenue Fund.
(3) Money paid out under subsection (2) shall include interest owing from the date the money was paid into the Consolidated Revenue Fund.
18. All sums required to discharge liability for a loss that the public trustee would be personally liable to discharge if he or she were a private trustee shall be made good out of the administration fund account or out of the Consolidated Revenue Fund but neither the public trustee nor his or her officers nor the administration fund account nor the Consolidated Revenue Fund is liable for a loss that would not have imposed liability upon a private trustee.
Investment of money
19. Money held by the public trustee that is available for investment may be invested in the same manner as authorized investments made in accordance with section 3 of the Trustee Act.
Discharge of liability of public trustee
20. (1) The Consolidated Revenue Fund is liable to make good all sums required to discharge a liability that the public trustee is liable to discharge as administrator, guardian, trustee, or in another capacity of the public trustee.
(2) Neither the public trustee, nor the Consolidated Revenue Fund, is liable to discharge a liability
(a) that the public trustee has not contributed to; and
(b) that the public trustee could not have averted by the exercise of reasonable diligence.
Public trustee's accounts
21. (1) The public trustee shall, as soon as possible after the end of every fiscal year, prepare accounts of all money held by the public trustee as an administrator, guardian, trustee or in another capacity, and shall, before August 1 in every year, provide a copy of the audited financial statements to the minister and the Comptroller General of Finance.
(2) The auditor general shall examine and audit the accounts of the public trustee.
Special reserve fund
22. (1) Where the income or other gains earned by the consolidated trust funds established under section 10 exceeds the amount credited, the excess income or other gains earned may be paid into a special reserve fund.
(2) The special reserve fund may be used by the public trustee
(a) to meet a deficiency between the income or other gains earned by a consolidated trust fund and the amount required to be credited;
(b) to meet a deficiency between the total amounts of money invested by the consolidated trust funds and the realized value of the investments held by the funds;
(c) to meet the cost of the administration of the consolidated trust funds and the special reserve fund;
(d) to meet the expenses incurred by the public trustee in the exercise of the public trustee's duties as public trustee, administrator, guardian, trustee or other capacity; and
(e) to meet the expenses incurred by the public trustee in the public trustee's capacity as administrator, guardian, trustee or in another capacity, where money to meet those expenses are not available in an estate administered by the public trustee.
(3) The public trustee may recover from an estate money paid out by the public trustee under paragraphs (2)(d) and (e) with reference to the estate.
(4) The provisions of paragraphs (2)(d) and (e) do not impose a duty on the public trustee to spend money for the benefit of an estate administered by the public trustee or to insure or otherwise preserve property of the estate where money is not available in the estate to meet the expenses.
23. The Lieutenant-Governor in Council may make regulations
(a) respecting the office of public trustee, imposing duties on the public trustee in addition to those imposed by this Act, prescribing the trusts or duties he or she is authorized to accept or undertake under this Act and the security to be given by the public trustee and his or her officers;
(b) respecting the compensation of the public trustee, fixing the fees and charges of the public trustee and the application and disposal of those fees and charges;
(c) respecting the transfer of property to and from the public trustee;
(d) respecting the accounts to be kept and the auditing of the accounts;
(e) for the establishment of an administration fund account for the purpose of meeting losses for which the office of public trustee may be liable;
(f) respecting the purposes for which, the manner in which and conditions subject to which payments may be made into and out of the administration fund account;
(g) respecting the interest rates to be prescribed on consolidated trust funds under section 10; and
(h) generally, to give effect to the purpose of this Act.
Fees and forms
24. The minister may establish fees and prescribe forms for the purpose and administration of this Act.
Jurisdiction of court
in this Act derogates from the inherent powers of the Supreme Court of
26. On the coming into force of this Act, money which is held in trust as it relates to the administration of estates by the Registrar of the Supreme Court as required by the Judicature Act, shall, where the administration of those monies now falls to the public trustee under the authority of this Act, be transferred to accounts created under Part II of this Act.
RSNL1990 cE-11 Amdt.
27. (1) Subsection 9(2) of the Enduring Powers of Attorney Act is amended by deleting the phrase "registrar of the court" and substituting the words "public trustee".
(2) Subsection 10(3) of the Act is amended by deleting the phrase "registrar of the court" and substituting the words "public trustee".
(3) Subsection 13(2) of the Act is amended by deleting the phrase "registrar of the court" and substituting the words "public trustee".
RSNL1990 cL-14 Amdt.
28. Subsection 52(3) of the Life Insurance Act is amended by deleting the phrase "Registrar of the Supreme Court" and substituting the words "public trustee".
RSNL1990 cM-10 Amdt
29. (1) Paragraph 2(g) of the Mentally Disabled Persons' Estates Act is repealed and the following substituted:
(g) "public trustee" means the public trustee appointed under the Public Trustee Act, 2009;
(2) Sections 20 and 21 of the Act are amended by deleting the word "registrar" wherever it occurs and substituting the words "public trustee".
(3) Section 22 of the Act is repealed.
(4) Sections 23, 24, 25 and 26 are amended by deleting the word "registrar" wherever it occurs and substituting the words "public trustee".
(5) Section 27 of the Act is repealed and the following is substituted:
Public Trustee Act, 2009 applies
27. The Public Trustee Act, 2009 shall apply in respect of an estate of which the public trustee becomes a guardian under this Act.
(6) Sections 28 to 35 of the Act are repealed.
(7) Section 36 of the Act is amended by deleting the word "registrar" and substituting the words "public trustee".
RSNL1990 cT-10 Amdt.
30. (1) Subsection 8(1) of the Trustee Act is amended by deleting the phrase "Registrar of the Supreme Court" and substituting the words "public trustee".
(2) Subsection 52(7) of the Act is repealed and the following substituted:
(7) Notwithstanding another provision of this Act, the compensation of the public trustee shall be governed by the Public Trustee Act, 2009.
31. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.
ŠEarl G. Tucker, Queen's Printer