Families are often startled to find that a bank, an employer or a company has contacted the Public Trustee about a deceased relative without being asked to. It is not officiousness. The Public Curator Act (Chapter 81) makes it an offence not to.
The duty in section 40
Section 40(1) applies where:
- a corporation, association or person is in possession of any property of a deceased person; or
- any property or money is to the credit of a deceased person in the books or accounts of a corporation, association or partnership; or
- under an association or partnership, a deceased person is entitled to a share in the assets, or their representatives are entitled to payments as their share; or
- a deceased person is a registered proprietor of shares in a corporation or association; or
- a person is indebted to a deceased person,
and the property, money, shares or debts are vested in or belong to the Public Trustee. In that case the corporation, association or person must give notice to the Public Trustee within 14 days.
The subsection frames the trigger in two ways: notice by a person known to the deceased or by the association or partnership concerned at the death, or where the Public Trustee is aware of the death and makes a request to the persons or bodies concerned.
The same duty for missing persons
Section 40(2) extends the obligation where a court order has vested possession of a missing person’s property in the Public Trustee. Any association, partnership or person holding property, holding a credit of money in its books, or holding an asset or share of the missing person; any corporation in which the missing person is a registered shareholder; and any person indebted to them, shall give notice immediately of the extent, nature and situation of the property, money, asset, share or debt.
Note the difference in timing: 14 days for a deceased person, immediately for a missing person. See part 5 of this series.
The penalties
Section 40(3) makes non-compliance actionable at the suit of the Public Trustee:
| Who | Penalty |
|---|---|
| A natural person | A fine not exceeding K5,000, or imprisonment for a term not exceeding two years, or both |
| A corporation or association | A fine not exceeding K10,000 |
That is why an institution will act on a death notification promptly and will not simply release funds to whoever appears at the counter. Its own exposure is personal and criminal, not merely commercial.
The duty is a protection. It is what stops a deceased person’s wages, superannuation or bank balance being quietly paid to whoever asks first. If you are the person entitled, the answer is not to press the bank — it is to obtain the grant or order that gives you authority. See executor, administrator or trustee.
The Public Trustee’s own search powers
Disclosure is not the only way the Office finds assets. Section 37 entitles the Public Trustee, or an authorised officer, to search and make copies of or take extracts from any document and titles relating to property in which the Public Trustee is or may be interested, held in a department or registry administered by:
- the Registrar-General;
- the Registrar of the National Court;
- the Registrar of Titles in the department responsible for lands and physical planning;
- the Department of Health;
- the National Housing Corporation; and
- the Investment Promotion Authority.
The Minister may prescribe further agencies by notice in the National Gazette. Under section 37(3), a search under this section is free of charge.
If you pay money to the Public Trustee
Section 43 protects the payer: the written receipt of the Public Trustee for money payable to it under the Act is a sufficient discharge, and the person paying is not afterwards liable for any later misapplication of that money.
For a bank or employer, that is the point of the exercise. Pay the Public Trustee, get the receipt, and the obligation is discharged — whatever happens to the funds afterwards.
If the property was not the deceased’s
Two provisions deal with the awkward case where something in the deceased’s possession belonged to someone else.
Section 39 provides that where the Public Trustee, an officer or an agent sells goods or chattels belonging to a third person, the amount realised shall be paid over to the owner on proof of ownership — unless it has already been applied in paying the deceased’s debts, or distributed under a will or in the ordinary course of administration, while the Office was in ignorance and without actual notice of the owner’s claim.
Section 35(2) adds that the Public Trustee, its officers and agents are not personally liable for such goods unless, at the time of sale, they knew, or before the sale had actual notice, that the goods were not the deceased’s.
Both provisions turn on notice. Once the property has been sold and the proceeds applied or distributed without notice of your claim, your position is far weaker. Notify the Public Trustee in writing, with proof of ownership, as soon as you learn of the death.
Protecting officers
One further offence sits in section 44: a person who threatens, intimidates or injures an officer of the Public Trustee in the course of official duties is guilty of an offence, with a penalty of a fine not exceeding K5,000 or imprisonment not exceeding two years, or both.
Estate disputes run hot. Pressure applied at a counter is a criminal matter, and it will not advance a claim. The lawful routes are the ones in part 1 of this FAQ series.
If an institution holds property of a deceased relative, or you are an institution unsure of your obligations, take advice. Contact a lawyer or the Office of the Public Solicitor.
Sources
- Public Curator Act (Chapter 81) — PacLII (1986 consolidation, PDF)
- Criminal Code Act (Chapter 262) — PacLII
- Bank of South Pacific Ltd v The Public Curator (2003) N2320 — vLex
- Office of the Public Trustee — official website
Penalty figures are those stated in the Act as consolidated to No 13 of 2020. Section 45(4) provides that a person charged with a dishonesty offence under section 45(3) is subject to punishment under the Criminal Code Act.