Second Session,

46th General Assembly

58 Elizabeth II,

BILL 27

AN ACT RESPECTING THE PUBLIC

TRUSTEE

Received

and Read the First Time ...................................................................

Second

Reading ..............................................................................................

Committee ......................................................................................................

Third

Reading .................................................................................................

Royal

Assent ...................................................................................................

HONOURABLE THOMAS

W. MARSHALL, Q.C.

Minister of Justice

and Attorney General

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

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 Labrador to a newly created,

independent Office of the Public Trustee.

This change would create a structure

consistent with the other common law jurisdictions of Canada .

A BILL

AN ACT RESPECTING THE PUBLIC TRUSTEE

Analysis

Short title

Definitions

PART

OFFICE OF THE PUBLIC TRUSTEE

Office of public trustee

Powers and duties of public trustee

Procedure - missing persons

Declaration of missing person

Payments on behalf of missing person

Charitable trust

Acceptance and execution of trusts

PART

FINANCIAL ADMINISTRATION

Consolidated trust fund

Administration fund account

Delivery up of property

Administration of small estates

Unclaimed money

Security

Compensation of public trustee

Persons entitled to money

Liability

Investment of money

Discharge of liability of public trustee

Public trustee's accounts

Special reserve fund

PART

III

GENERAL

Regulations

Fees and forms

Jurisdiction of court

Transitional

RSNL1990 cE-11 Amdt.

RSNL1990 cL-14 Amdt.

RSNL1990 cM-10 Amdt

RSNL1990 cT-10 Amdt.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Public Trustee

Act, 2009 .

Definitions

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.

PART I

OFFICE OF THE PUBLIC TRUSTEE

Office of public

trustee

(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.

(6) Where

(

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

(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

(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

(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.

Charitable trust

(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

considers appropriate, and the public trustee shall comply with that order.

Acceptance and

execution of trusts

(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.

PART II

FINANCIAL ADMINISTRATION

Consolidated

trust fund

(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

(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

(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 Province of Quebec ;

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.

Unclaimed money

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.

Security

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

(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

(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.

Liability

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

(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.

PART III

GENERAL

Regulations

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

25. Nothing

in this Act derogates from the inherent powers of the Supreme Court of

Newfoundland and Labrador .

Transitional

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

(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.

Commencement

31. This Act comes into force on a day to be

proclaimed by the Lieutenant-Governor in Council.

Earl G. Tucker, Queen's Printer