The Public Trustee Is Handling My Relative’s Estate — What Are My Rights?

Families dealing with the Public Trustee often assume they are supplicants — that they may ask politely and hope. The Public Curator Act (Chapter 81) says otherwise. If you are interested in the estate, you have enforceable rights.

Who counts as “interested”

The Act uses that word rather than “beneficiary”, and it is deliberately wider. Section 34 speaks of a person interested as creditor, next of kin, or otherwise. Section 29(2) speaks of “any person interested in an estate”. A creditor of the deceased, a person entitled on an intestacy, a beneficiary under a will and a dependant may all qualify.

Right one: to inspect the file

This is the most useful and least used provision in the Act. On written application by or with the authority of any person interested in the estate, section 29(2) requires the Public Trustee to:

• permit you, or your lawyer or authorised agent, to inspect and take copies of any entry in any register or file kept in relation to the estate, and any account, notice or other document in its custody, so far as your interest is or may be affected by it;
• supply a copy of any such entry, account, notice or document, or an extract from it, at your expense; and
• give you information about the estate and the trust property, so far as reasonably requested in the application and within the Public Trustee’s power to give.

The Public Trustee must also keep the records in the first place. Section 29(1) requires an inventory of all estates under orders made under sections 10, 11 and 12; an account of all receipts, payments and dealings in every such estate; and retention of the correspondence, deeds and papers relating to them.

There is a counterweight in section 29(3): subject to your inspection right, the Public Trustee, its officers and its agents must observe strict secrecy about every estate. That is why they will ask you to establish your interest before opening a file — it is not obstruction, it is the same rule protecting your family’s estate from strangers.

Right two: to make the Public Trustee show cause

Section 34 is the enforcement provision. Where the Public Trustee neglects or refuses to do an act in relation to the administration, or does or threatens to do an act in breach of its duty, a person interested may apply on affidavit to the National Court or a Judge for:

• an order calling on the Public Trustee to show cause, on a day not less than two days after service, why it should not do or abstain from doing the act; and
• an interim order in the nature of an injunction, if the facts warrant it.

On the hearing, the Court may receive proof orally or by affidavit and make such order as the circumstances require, including as to costs — payable by the complainant, by the Public Trustee, or from the estate. The order has the same effect and is enforceable by the same process as an order in an ordinary suit.

The Court may require security for costs as a condition (section 34(2)). That is the practical brake on speculative complaints, and it is worth asking a lawyer about before filing.

Right three: to ask the Court for directions

Not every problem is a breach of duty. Sometimes an estate is simply stuck. Section 33 allows the Public Trustee or a person interested in an estate to apply to the National Court for such orders concerning the collection, sale, investment and disposal of the estate as the Court thinks proper.

And section 32 sets the forum: where an order has been made under section 10 or 11 (deceased estates) or section 12 (missing persons), all disputes and matters concerning the collection, management or administration, and all claims on the estate or property, are to be decided by the National Court — unless the Court considers it undesirable and directs other proceedings.

The limits: when the Office is protected

Be realistic about what can be recovered from whom. Section 35 provides that the Public Trustee, its officers and agents are not personally liable for acts done in good faith in performing their duties unless the act was done not only illegally but also wilfully or with gross negligence. The Public Trustee is also not answerable for an agent’s act that did not conform to its directions or did not happen through its own default or neglect.

But the door is not closed. Section 36 provides a general remedy: where a person sustains an injury through an act or omission of the Public Trustee, its officers or agents acting or purporting in good faith to act under the Act, and the injury would have entitled them to a remedy had a private person done it, they are entitled to the same remedy against the State.

What to do, in order

1. Write a section 29(2) request naming your interest and the documents you want.
2. Diarise the date you sent it and follow up in writing.
3. Read the account. Check the inventory against what you know existed, and check the commission and charges under sections 41 and 42.
4. Raise specific concerns in writing and ask for a written answer.
5. If nothing moves, take advice about a section 34 show cause application or a section 33 application for directions.