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Revised Statutes of Newfoundland 1990


CHAPTER P-46

AN ACT TO PROVIDE FOR THE APPOINTMENT AND DUTIES OF A PUBLIC TRUSTEE

Analysis

1. Short title

2. Definitions

3. Establishment of office of public trustee

4. Deputy public trustee

5. Acting public trustee

6. Staff

7. Salaries

8. Powers and duties of public trustee

9. Acceptance and execution of trusts

10. Fees

11. Administration fund account

12. Delivery up of property $2,000 or less in value

13. Losses, how to be made good

14. Charitable and public trusts

15. Investment of money

16. Regulations

17. Advisory committee

18. Security by public trustee not necessary

19. Commencement


Short title

1. This Act may be cited as the Public Trustee Act.

RSN1970 c321 s1

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Definitions

2. In this Act,

(a) "administration fund account" means the administration fund account established by the public trustee under this Act;

(b) "advisory committee" means the advisory committee constituted in accordance with the regulations;

(c) "assurance fund" means the assurance fund established in accordance with the regulations;

(d) "deputy public trustee" means the deputy public trustee appointed under this Act;

(e) "judge" means judge of the Trial Division;

(f) "mentally incompetent person" means a mentally incompetent person as defined in the Mentally Incompetent Persons' Estates Act; and

(g) "public trustee" means the public trustee appointed under this Act and includes the deputy public trustee or another person acting instead of the public trustee.

RSN1970 c321 s2; 1986 c42 Sch A

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Establishment of office of public trustee

3. (1) There is established the office of public trustee which is a corporation and which shall be occupied by the public trustee.

(2) The Lieutenant-Governor in Council may appoint a member of the Bar of Newfoundland to be the public trustee.

RSN1970 c321 s3

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Deputy public trustee

4. The Lieutenant-Governor in Council may appoint a person to be deputy public trustee to act instead of the public trustee in the case of the illness or absence from his or her office of the public trustee 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.

RSN1970 c321 s4

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Acting public trustee

5. In the case of the illness of the public trustee or where the office is vacant and there is no deputy public trustee, the Lieutenant-Governor in Council may appoint a member of the Bar of Newfoundland to act instead of the public trustee until a public trustee or deputy public trustee is appointed.

RSN1970 c321 s5

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Staff

6. The Lieutenant-Governor in Council may appoint those officers and employees in the office of the public trustee that are necessary for the purposes of this Act.

RSN1970 c321 s6

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Salaries

7. The salaries or other remuneration of the public trustee, the deputy public trustee and the officers and employees in the office of the public trustee shall be fixed by the Lieutenant-Governor in Council and the salaries or other remuneration and the expenses of the office of the public trustee shall be paid, as the Lieutenant-Governor in Council directs, from money voted by the Legislature for the purpose or out of the administration fund account.

RSN1970 c321 s7

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Powers and duties of public trustee

8. (1) The public trustee has the powers and shall discharge the duties given to or imposed upon him or her by this Act and another Act of the Legislature 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 who are for the time being of age and capable in law of giving a valid consent;

(b) act as the administrator of estates;

(c) act as custodian of property of missing persons, convicts and deceased persons;

(d) act as the guardian of the estate of a mentally incompetent person;

(e) act as guardian in an action in court respecting the estate of an infant;

(f) act as guardian of the estate of an infant made a ward of the Director of Child Welfare under the Child Welfare 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 an infant

(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 whatsoever; and

(h) act in another capacity and do other acts, matters and things that the public trustee is authorized or required to do

(i) by the Rules of the Supreme Court, or

(ii) by order of a judge.

RSN1970 c321 s8

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Acceptance and execution of trusts

9. (1) The public trustee may, with his or her consent in writing, 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.

RSN1970 c321 s9; 1986 c42 Sch A

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Fees

10. (1) The public trustee shall charge for his or her services, collect and account for in the manner prescribed by the regulations the fees, charges and expenses that would be allowed to a private trustee and the fees that may be 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.

RSN1970 c321 s10

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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) An assurance fund may be established from a surplus in the administration fund account in accordance with the regulations.

(3) The Lieutenant-Governor in Council may direct the payment into the Consolidated Revenue Fund of a balance at the credit of the administration fund account.

(4) Payments into and out of the administration fund account shall be made for those purposes, in the manner and subject to those conditions that are prescribed in the regulations.

RSN1970 c321 s11

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Delivery up of property $2,000 or less in value

12. (1) Where the public trustee acting in any capacity has in his or her hands property, not exceeding $2,000 in value, 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 Canada having power to make that grant or by a court or authority in a country of the Commonwealth or a colony, dependency or protectorate of a country or of a testament-testamentar or testament-dative expede in Scotland;

(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; or

(c) if the deceased died elsewhere than in a place mentioned in paragraph (a), an authenticated copy of the probate of his or her will or of letters of administration of his or her property or other document to the same effect, granted by a court or authority having the requisite power in those matters,

is sufficient jurisdiction and authority for the delivering of the property to the personal representative in pursuance of and in conformity with the probate, letters of administration or other document.

(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.

RSN1970 c321 s12

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Losses, how to be made good

13. 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 assurance fund or out of the Consolidated Revenue Fund but neither the public trustee nor his or her officers nor the assurance fund nor the Consolidated Revenue Fund is liable for a loss that would not have imposed liability upon a private trustee.

RSN1970 c321 s13

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Charitable and public trusts

14. The public trustee may accept and administer a charitable or public trust.

RSN1970 c321 s14

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Investment of money

15. Money held by the public trustee that is available for investment may be invested in securities in which trustees are authorized to invest funds under the Trustee Act.

RSN1970 c321 s15

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Regulations

16. 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) for fixing the fees and charges in the office of the public trustee and the application and disposal of those fees and charges;

(c) providing for the granting of exemptions from payment of fees or charges or both or the remission of fees or charges paid;

(d) respecting the transfer to and from the public trustee of property;

(e) respecting the accounts to be kept and the auditing of the accounts;

(f) for the establishment of an assurance fund for the purpose of meeting losses for which the office of public trustee may be liable;

(g) 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;

(h) fixing the rate of interest to be allowed upon money in the hands of the public trustee and fixing the amount of interest to be charged upon advances made on behalf of an estate and the custody and control of securities held by him or her for investments;

(i) for constituting an advisory committee for the supervision of the investments or other dealings with property by the public trustee and for providing for the remuneration by fees or otherwise of the members of the committee; and

(j) generally, to give effect to the purpose of this Act.

RSN1970 c321 s16

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Advisory committee

17. (1) The members of the advisory committee of the public trustee are visitors of the office of the public trustee.

(2) The advisory committee may make suggestions and recommendations with regard to the general policy respecting the management and conduct of the office of public trustee that are considered advisable.

(3) The public trustee may consult with the advisory committee as to methods of administration, staff and other matters relating to the office.

(4) The advisory committee shall make an annual report to the Lieutenant-Governor in Council respecting the performance of their duties and the exercise of their powers under this section.

RSN1970 c321 s17

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Security by public trustee not necessary

18. Notwithstanding a rule or practice of an Act requiring security, if the public trustee has given security under the regulations it is not necessary for him or her to give additional security for the performance of his or her duty as executor, administrator, trustee, guardian or in another office to which he or she may be appointed by order of the Trial Division or under an Act.

RSN1970 c321 s18; 1986 c42 Sch A

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Commencement

19. This Act shall come into force on a day to be fixed by proclamation of the Lieutenant-Governor in Council.

RSN1970 c321 s19

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