Public Trustee Act

Consolidated act
Citation
R.S.N.W.T. 1988, c.P-19
Source
Unofficial consolidation PDF (justice.gov.nt.ca)

This is an unofficial reading copy parsed from the Department of Justice consolidation PDF above — itself an office consolidation, not an official statement of the law. The authoritative text is in the Revised Statutes of the Northwest Territories, 1988 and the annual Statutes volumes.

Cites
Cited by
Contents
1. Definitions 2. Public Trustee 2.1. Delegation 3. Powers of Public Trustee 4. Notice to Public Trustee 5. Notice to Public Trustee of application to Supreme Court 6. Property of minor without guardian 7. Advance out of estate of 8. Procedure 9. Declaration by Supreme Court judge 10. Payments by Public Trustee 11. Repealed 11. Repealed 23. Appointment by Supreme Court 23.1. Disposition of small estates 24. Public Trustee may take possession 25. Application 26. Election to administer 27. Revocation of grants of letters of 28. Application for appointment 29. Repealed 30. Common fund 31. Rate of interest 32. Excess interest in common fund 32.1. Application 33. Investigation or audit of trust 34. Application to require passing of accounts 35. Accountable advance 36. Costs 37. Waiver or remission of fees 37.1. Expenses and disbursements 38. Audit 39. Regulations
Regulations
Public Trustee Regulations

Definitions

1.

In this Act,

"Clerk" means the Clerk of the Supreme Court; (greffier)

"missing person" means a person who cannot be found and whose present place of residence is unascertainable; (absent)

"Public Trustee" means the Public Trustee appointed under subsection 2(1). (curateur public) S.N.W.T. 1994,c.29,s.66(2); S.N.W.T. 2015,c.24, s.4(2).

PUBLIC TRUSTEE

Public Trustee

2.

(1) The Commissioner shall appoint a Public Trustee.

Powers and duties

(2) The Public Trustee has the powers and the duties conferred or imposed on the Public Trustee by this or any other Act and such further powers and duties as the Commissioner may confer or impose.

Security bond

(3) If required by the Commissioner, the Public Trustee shall provide security to the satisfaction of the Commissioner in the penal sum of not less than $10,000 conditioned for the due performance of his or her duties, but shall not otherwise be required to provide security unless a judge of the Supreme Court so directs and such security may be provided by bond or agreement of any guarantee company approved by the Commissioner. S.N.W.T. 2011,c.16,s.19(2).

Delegation

2.1.

Where the Public Trustee is given any power or duty under this Act, under any other enactment or by an order of a court, the Public Trustee may authorize, in writing, one or more persons to exercise that power or perform that duty on such conditions and in such circumstances as are set out in the authorization. S.N.W.T. 1994,c.29,s.66(3).

Powers of Public Trustee

3.

The Public Trustee may

(a) act in the administration of estates;

(b) act as custodian of property of missing persons and deceased persons;

(c) on order of the Supreme Court, act as judicial trustee of the estate of a deceased person;

(d) either alone or jointly with any other person, accept and carry out a trust where the Public Trustee 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 sui juris;

(d.1) act as attorney on behalf of a person under a power of attorney;

(e) act as administrator of the estate of a child who has been placed in the permanent custody of the Director of Child and Family Services under the Child and Family Services Act;

(f) act as guardian ad litem of the estate of a minor;

(g) act as the trustee of the estate of a person in respect of whom a trusteeship order has been made under the Guardianship and Trusteeship Act;

(h) where no person has been appointed guardian, act as guardian or trustee 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 and either certainly or contingently to property under an intestacy, or under a will, settlement, trust deed or in any other manner; and

(i) act in such other capacity and do such other acts, matters and things, as the Public Trustee is authorized, or required to do

(i) by the Rules of the Supreme Court,

(ii) by order of a judge of the Supreme Court, or

(iii) under this Act.

S.N.W.T. 1994, c.29,s.66(4); S.N.W.T. 1998,c.17, s.25(2),(3); S.N.W.T. 2001,c.15, s.29(2).

MINORS AND MISSING PERSONS

Notice to Public Trustee

4.

(1) The Public Trustee must be served with notice of each application made to a court in respect of the property or estate of a minor or missing person.

Service of notice

(2) Service on the Public Trustee referred to subsection (1) may be made by delivering to the Public Trustee a copy of the statement of claim, originating notice, petition or other process originating the matter in which the application is made, together with copies of all affidavits and other material to be used on the application.

Guardian ad litem

(3) The Public Trustee when served is guardian ad litem of the estate of the minor or trustee of the property of the missing person, as the case may be, until the Supreme Court otherwise orders.

Duties of Public Trustee or guardian

(4) The Public Trustee or any other guardian appointed by the Supreme Court for a minor shall take the proceedings that he or she considers necessary for the protection of the interests affected and shall attend actively to the interests affected and for that purpose shall communicate with the proper parties.

Representa- tions by Public Trustee

(5) No application referred to in subsection (1) shall be proceeded with until the Public Trustee is represented on the application or has expressed his or her intention of not being represented.

Notice to Public Trustee of application to Supreme Court

5.

(1) Where a minor, a person who was a minor at date of death or a missing person is interested in an estate in respect of which an application is made to the Supreme Court, the Clerk shall send to the Public Trustee particulars

(a) of each application and of the estate and persons entitled to an interest; and

(b) of further applications affecting the estate of the minor or missing person.

Representation

(2) No application referred to in subsection (1) shall be proceeded with until the Public Trustee is represented on the application or has expressed his or her intention of not being represented. S.N.W.T. 2015,ch.24,s.4(3).

Property of minor without guardian

6.

(1) Subject to Division B of Part III of the Children’s Law Act but notwithstanding any other provisions of that Act and any other Act, any money, other than wages or salary, and any property to which a minor is entitled under an intestacy or under a will, settlement, trust deed or in any other manner, and for whose estate no person has been appointed guardian, shall be paid or transferred to the Public Trustee.

Duty to account

(2) The Public Trustee shall account to the minor according to the provisions of the law, will or trust instrument, as the case may be. S.N.W.T. 1998, c.17,s.25(4).

MAINTENANCE AND EDUCATION

OF MINORS

Advance out of estate of

7.

(1) Where

(a) a minor is entitled to share in the estate of an intestate and the share has been paid to the Public Trustee as guardian of the estate of the minor or for the benefit of the minor, or

(b) property is held by the Public Trustee as trustee for a minor and the property is not subject to the terms of a will, trust deed or other instrument governing the trust,

the Public Trustee shall apply to the Supreme Court on summary application for an order authorizing the Public Trustee to expend, or to advance to a person having the lawful custody of the minor, so much of the share of property for the maintenance and education of the minor as the judge considers proper.

Authorization of Supreme Court

(2) On the making of an order under subsection (1), the Supreme Court, for the purpose of making the payments or advances authorized by the order, may authorize the sale or conversion of any of the real or personal property held by the Public Trustee on behalf of the minor.

S.N.W.T. 2019,c.21,s.8(2).

PROPERTY OF MISSING PERSONS

Procedure

8.

When it is brought to the attention of the Public Trustee that a person appears to be a missing person, the Public Trustee after investigation may

(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 of the Supreme Court.

Declaration by Supreme Court judge

9.

(1) If it is proved to the satisfaction of a judge of the Supreme Court that a person is a missing person, the judge

(a) may declare the person to be a missing person; and

(b) by order may appoint the Public Trustee as trustee of the property of the missing person.

Powers of Public Trustee

(2) The Public Trustee on the order of a judge of the Supreme Court may mortgage, lease, sell or otherwise dispose of any of the real or personal property of a missing person.

Payments by Public Trustee

10.

(1) The Public Trustee, without a further order of a judge of the Supreme Court, may 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

(i) of a spouse or child or reputed child of the missing person, or

(ii) of any other relative or reputed relative of the missing person dependent on the missing person for support.

Distribution of property

(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 two 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 of the Supreme Court.

Definition: "spouse"

(3) In subsection (1), "spouse” has the meaning assigned to it by the Family Law Act. S.N.W.T. 1998,c.17,s.25(5).

11.

Repealed, S.N.W.T. 2019,c.21,s.8(3).

11.

- 22. Repealed, S.N.W.T. 1994,c.29,s.66(5).

ADMINISTRATION OF ESTATES

Appointment by Supreme Court

23.

Where the Supreme Court or judge of the Supreme Court is empowered to appoint a trustee, executor, administrator, guardian or committee, the Supreme Court may appoint the Public Trustee with the consent of the Public Trustee to any of the appointments.

Disposition of small estates

23.1.

(1) If a person dies and the person’s estate consists only of personal property that has a value, as estimated by the Public Trustee, not exceeding $35,000 and no person has been granted probate or administration in the Northwest Territories, the Public Trustee may, without obtaining a grant of administration,

(a) take possession of the deceased person’s property;

(b) dispose of articles of personal use in any manner the Public Trustee considers appropriate;

(c) sell property not disposed of under paragraph (b), and apply the proceeds toward payment of amounts due and debts incurred for the burial of the deceased; and

(d) do any other thing necessary to complete the administration of the estate.

Proof of administration

(2) A document in the prescribed form advising that the Public Trustee is administering the estate of a deceased person under this section is conclusive proof that the Public Trustee is the administrator of the estate. S.N.W.T. 2015,c.24,s.4(6).

Public Trustee may take possession

24.

(1) Where a person dies whether testate or intestate and the lands, personal estate and effects of the person have not been taken possession of by the executors or next-of-kin of the person, the Public Trustee

(a) may take possession of the lands, personal estate and effects without delay; and

(b) may safely keep, preserve and protect the lands, personal estate and effects.

Powers before grant

(2) The Public Trustee, before the grant of probate to an executor or the grant of letters of administration, as the case may be, has the powers of an executor or administrator, except that the Public Trustee shall not sell property unless in the opinion of the Public Trustee the estate might suffer loss if a sale is not made.

Application

25.

(1) This section applies notwithstanding any other enactment.

Public Trustee may apply for grant of administration

(2) Where a person dies anywhere leaving property in the Northwest Territories and no grant of probate or administration has been issued in the Territories, the Public Trustee may apply for and obtain a grant of administration.

Minimum time before applying

(3) The Public Trustee may not apply for a grant under this section until at least

(a) 30 days after the death of a person who died intestate; or

(b) 120 days after the death of a person who died testate, unless the Court permits otherwise.

Notice

(4) The Public Trustee may give notice of an application for a grant under this section to the persons and in the manner the Public Trustee considers appropriate.

No renunciation required

(5) The Public Trustee is not required to obtain a renunciation from any person who would be entitled to a grant in priority to the Public Trustee.

Applying for revocation of grant

(6) A person may, in accordance with the Estate Administration Rules, apply to the Court for an order revoking a grant to the Public Trustee under this section.

Revocation of grant

(7) The Court may, on hearing an application by a person made under subsection (6), revoke a grant to the Public Trustee and grant probate or administration to the person, if the Court is satisfied that

(a) the person is eligible to receive the grant; and

(b) it would be appropriate in all the circumstances to revoke the Public Trustee’s appointment and grant probate or administration to the person.

S.N.W.T. 2015,c.24,s.4(7).

Election to administer

26.

(1) The Public Trustee may elect to administer the estate of a deceased person without applying for a grant of administration if

(a) the person has died anywhere, whether testate or intestate, leaving property in the Northwest Territories;

(b) the value of the deceased person’s estate in the Northwest Territories, as estimated by the Public Trustee, does not have a value exceeding $75,000; and

(c) no grant of probate or administration has been issued in the Northwest Territories.

If election

(2) If the Public Trustee elects to administer a deceased person’s estate under this section, the Public Trustee shall

(a) file an election in writing with the Court; and

(b) comply with any other requirements that may be prescribed.

Proof of right to administer estate

(3) The Public Trustee becomes administrator of the deceased person’s estate on filing an election under subsection (2), and the filing of the election is conclusive proof of the Public Trustee’s right to administer the estate.

No fee payable

(4) No fee is payable by the Public Trustee to file an election under this section.

Status of certified election

(5) A copy of an election certified by the Clerk is equivalent to a certified copy of a grant of administration for all purposes.

If value exceeds 20% of allowed maximum

(6) If the Public Trustee discovers after filing an election that the net value of the property to be administered exceeds by more than 20% the amount referred to in paragraph (1)(b), the Public Trustee shall, as soon as is reasonably practicable,

(a) file with the Clerk a memorandum stating that fact; and

(b) proceed in the ordinary manner to obtain a grant of administration under the Estate Administration Rules.

When election ceases to be in effect

(7) An election already filed by the Public Trustee ceases to be in effect if the Public Trustee files with the Clerk a certificate describing facts that, in the opinion of the Public Trustee, make it inappropriate for the election to remain in effect.

If memorandum filed

(8) If the Public Trustee files a memorandum under subsection (6) or a certificate under subsection (7), section 24 applies to any property of the deceased then remaining in the hands of the Public Trustee, as if the Public Trustee had taken possession of the property under section 24.

Accounting required on completion

(9) On completing the administration of an estate under this section, the Public Trustee shall file an accounting of that administration with the Clerk.

Revocation of election

(10) The Court may, on application with at least 10 days notice to the Public Trustee, revoke an election under this section and grant probate or administration to another person, if the Court is satisfied that

(a) the other person is eligible to receive the grant; and

(b) it would be appropriate in all the circumstances to revoke the Public Trustee’s election and grant probate or administration to the other person.

S.N.W.T. 2015,c.24,s.4(7).

Revocation of grants of letters of

27.

(1) Where a grant of letters of administration has been made to the Public Trustee under section 25,

(a) the grant may be revoked on terms as to the payment of costs and charges of the Public Trustee that the Supreme Court considers fair and proper; and

(b) a new grant may be made on application of a person otherwise entitled to letters of administration on proof

(i) that the person has not renounced or refused administration,

(ii) that the omission to apply sooner for administration was due to absence from the Northwest Territories, illness, incapacity or other circumstances sufficient to excuse the omission, and

(iii) that 14 days notice in writing of the intention of the person to apply for a grant has been given to the Public Trustee.

Costs

(2) On an application under subsection 25(1), no costs shall be awarded against the Public Trustee. S.N.W.T. 2011,c.16,s.19(7).

JUDICIAL TRUSTEE

Application for appointment

28.

(1) A person may apply to the Supreme Court for an order appointing the Public Trustee a judicial trustee under the Trustee Act.

Appointment

(2) The Supreme Court may, by order, appoint the Public Trustee a judicial trustee where it considers it appropriate to do so. S.N.W.T. 2011,c.16,s.19(9).

29.

Repealed, S.N.W.T. 1994,c.29,s.66(6).

COMMON FUND

Common fund

30.

(1) Money in the hands of the Public Trustee, not being money subject to any express trust or direction for the investment of the money, may be invested in a common fund in a bank approved by the Commissioner and kept and controlled by the Public Trustee.

Investments held in common

(2) An investment made under subsection (1) shall not be made on account of or belong to a particular estate.

Interest of beneficiaries

(3) The interest of a person entitled to a share or interest in a common fund referred to in subsection (1) is in common with the other persons so entitled. S.N.W.T. 2011,c.16,s.19(10).

Rate of interest

31.

(1) The interest payable in respect of the estates, the money of which form the common fund, shall be at the rate of 3% per year or at another rate that is prescribed.

Crediting of interest

(2) Interest shall be

(a) credited to the respective estates at the authorized rate half-yearly, on April 30 and October 31 in each year; and

(b) calculated on the minimum monthly balances of the money that form the common fund.

Investment in securities for distribution

(3) The money deposited in the common fund shall be invested from time to time in securities authorized by the Comptroller General and not otherwise.

Distribution

(4) For the purpose of distribution

(a) the investments in the common fund are deemed to be of the same aggregate value as the aggregate amount of money invested in the fund; and

(b) no regard shall be had to a fluctuation in value or price of the investments of the common fund.

S.N.W.T. 2011,c.16,s.19(11),(12).

Excess interest in common fund

32.

(1) Where the amount of interest earned by the investment of the common fund in a half-year period ending on April 30 or October 31 exceeds the amount of interest payable in respect of the estates invested in the common fund, the amount of the excess interest shall be paid into the Consolidated Revenue Fund after deduction of

(a) the amount of any prescribed fees; and

(b) any deficiency between the aggregate amount of sums invested in the common fund and the actual value of the investments of the common fund.

Guarantee

(2) Subject to subsection (3), the Government of the Northwest Territories guarantees that the common fund will be sufficient for the purpose of paying lawful claims that are payable out of the common fund pursuant to this Act.

Source of payments to meet guarantee

(3) The sums that are necessary to implement the guarantee referred to in subsection (2) must be paid from money appropriated for that purpose out of the Consolidated Revenue Fund. S.N.W.T. 1996, c.21,s.2; S.N.W.T. 2011,c.16,s.19(11).

S.N.W.T. 2019,c.21,s.8(4).

UNCLAIMED PROPERTY

Application

32.1.

(1) This section applies where the Public Trustee is holding

(a) property of a missing person as a trustee pursuant to an order of a judge of the Supreme Court under paragraph 9(1)(b);

(b) property of an estate of a deceased person being administered by the Public Trustee; or

(c) property that is not described in paragraph (a) or (b) and that has a value not exceeding $500.

Notice to Minister and public

(2) If the Public Trustee has held property for not less than 10 years, and has been unable to determine whether any person is entitled to the property despite making reasonable inquiries having due regard to the value of the property, the Public Trustee may

(a) notify the Minister of the status of the property, and of the inquiries made to determine whether any person is entitled to the property; and

(b) publish a notice in the Northwest Territories Gazette stating that the Public Trustee is holding the property, and further stating that the property will be transferred into the Consolidated Revenue Fund in accordance with this section.

Transfer to Consolidated Revenue Fund

(3) At the expiration of a period of not less than one year after the publication of the notice referred to in paragraph (2)(b),

(a) if the property is money, the Public Trustee may transfer the money to the Consolidated Revenue Fund; or

(b) if the property is not money, the Public Trustee may by sale or otherwise, convert the property into money and transfer that money to the Consolidated Revenue Fund.

Gazette notice of transfer

(4) On transferring money to the Consolidated Revenue Fund, the Public Trustee shall publish a notice in the Northwest Territories Gazette.

Claim for transferred money

(5) At any time before the expiry of 10 years after money is transferred to the Consolidated Revenue Fund under subsection (3), a person, or the Public Trustee acting on behalf of a person, may make a claim in respect of the money, and

(a) in the case of a person declared missing under paragraph 9(1)(a), the Court may determine if the claimant is entitled to the money; or

(b) in any other case, the Minister may determine if the claimant is entitled to the money.

Payment to claimant

(6) If a determination is made under subsection (5) that the claimant is entitled to the money, the Minister shall pay the money to the claimant out of the Consolidated Revenue Fund.

Public Trustee as claimant

(7) Where money is paid to the Public Trustee as the claimant under subsection (6), the Public Trustee shall pay the money to the person who is entitled to the money.

Interest not payable

(8) No interest is payable on money paid under subsection (6) or (7) in respect of the period following its transfer to the Consolidated Revenue Fund. S.N.W.T. 2019,c.21,s.8(4).

GENERAL

Investigation or audit of trust

33.

(1) The Public Trustee on the order of a judge of the Supreme Court or of the Commissioner may investigate or audit the accounts of any trust.

Powers of Public Trustee

(2) The Public Trustee when making an investigation or audit

(a) has the right of access for the Public Trustee and for any other person acting under instructions of the Public Trustee to

(i) the books, accounts and vouchers of the trustees, and

(ii) any securities and documents of title held by the trustees on account of the trust; and

(b) may require from the trustees any information and explanation necessaryfor the performance of the duties of the Public Trustee.

Report of investigation

(3) When an investigation and audit is completed, the Public Trustee shall make a report on it to the Supreme Court or to the Commissioner, as the case may be.

Application to require passing of accounts

34.

(1) The Public Trustee may apply to the Supreme Court to compel an administrator or executor acting in the affairs of an estate in which the Public Trustee is interested, to pass his or her accounts

(a) at the expiration of two years after the date on which probate or letters of administration were issued; or

(b) at any other time the Public Trustee considers advisable.

Order to pass accounts

(2) Where an application is made under subsection (1), the judge of the Supreme Court may order that the executor or administrator pass his or her accounts within a time that may be fixed by the judge.

Enforcement of order

(3) An order made under subsection (2) may be enforced in the same manner as is set out in the Rules of Supreme Court for the enforcement of an order of the Supreme Court. S.N.W.T. 2011,c.16,s.19(13).

Accountable advance

35.

The Comptroller General may, pursuant to the Financial Administration Act, make an accountable advance to the Public Trustee from the Consolidated Revenue Fund for the period and on the terms and conditions that are considered necessary for the advantageous administration of an estate being administered by the Public Trustee pursuant to this Act.

Costs

36.

Where a Public Trustee is a party to a proceeding or application, the Supreme Court or a judge of the Supreme Court may order any other party to the proceeding or application or any other person not a party to the proceeding or application to pay the costs of the proceeding or application.

Waiver or remission of fees

37.

The Public Trustee, or a person designated by the Public Trustee, may waive or remit a fee prescribed or determined under the regulations where the Public Trustee or the designate considers that the imposition of the fee would cause hardship or unfairness in the circumstances. S.N.W.T. 1991-92,c.41,s.2.

Expenses and disbursements

37.1.

(1) The Public Trustee may charge to and take from a trust or estate under the control or administration of the Public Trustee such expenses and disbursements as would be allowed to a private trustee acting in respect of such a trust or estate.

Charge for services of staff

(2) A charge may be made as a disbursement under subsection (1) for any service performed by a member of the staff of the office of the Public Trustee in respect of a trust or estate controlled or administered by the Public Trustee, where the service would be allowed as a disbursement against the trust or estate if performed by a person retained or employed by a private trustee to perform such a service. S.N.W.T. 1991-92,c.41,s.2.

Audit

38.

(1) The Commissioner shall cause an audit to the books, accounts, vouchers and other documents in the hands of the Public Trustee annually and at any other times that the Commissioner considers expedient.

Examination

(2) The Public Trustee shall permit the books, accounts, vouchers and other documents in the hands of the Public Trustee to be examined for the purposes of subsection (1).

RULES AND REGULATIONS

Regulations

39.

(1) The Commissioner, on the recommendation of the Minister, may make regulations

(a) Repealed, S.N.W.T. 1994,c.29,s.66(7).

(b) prescribing the fees that, for the management of the common fund, may be charged against the common fund and against the persons entitled to the common fund;

(c) prescribing fees, a scale of fees or a formula for determining fees payable to the Public Trustee for the performance of a duty or for services rendered by or on behalf of the Public Trustee under this Act or any other enactment;

(d) authorizing the Public Trustee to take fees from a trust or estate that is under the control or administration of the Public Trustee;

(e) prescribing the rate of interest in respect of the estates referred in subsection 31(1);

(f) governing practices and procedures in the office of the Public Trustee, including the disposal of assets in estates;

(g) respecting forms to be used under this Act;

(h) prescribing any other thing that is to be prescribed under this Act; and

(i) respecting any other matter the Commissioner considers necessary or advisable for carrying out the purposes and provisions of this Act.

Rules and regulations

(2) The Commissioner, on the recommendation of the Minister, may make rules and regulations for the management of the common fund. S.N.W.T. 1991-92, c.41, s.3; S.N.W.T. 1997,c.8,s.29; S.N.W.T. 1994,c.29, s.66(7); S.N.W.T. 2016,c.9,s.12; S.N.W.T. 2017, c.20,s.11.