Who Is the Public Trustee?

In this series we take one legal idea at a time and set it out plainly. This series covers the office most Papua New Guinean families will deal with after a death, and which almost nobody understands until they have to: the Public Trustee.

First, the name

If you have heard of the Public Curator, that is the same office. The governing statute is still called the Public Curator Act (Chapter 81), but the Act as it now stands — consolidated to No 13 of 2020 — opens by describing itself as an Act to “change the name ‘Public Curator’ to ‘Public Trustee’” and to establish the office of the Public Trustee.

So the Act carries the old name and the office carries the new one. Older judgments, older files and many people still say “Public Curator”. When you read a case from 2014 about the Public Curator, it is about this office.

What kind of body it is

Under section 2, the Office of the Public Trustee is established, and the Office:

• is a body corporate with perpetual succession;
• must have a common seal;
• may acquire, hold and dispose of property; and
• may sue and be sued in its corporate name.

“Perpetual succession” is the useful part. The Office does not die, retire or move province. That is precisely why the law can hand it an estate that may take years to wind up. The person holding the office changes; the trustee does not.

The Public Trustee is appointed under the process in the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004. Section 3 provides for a Deputy Public Trustee, who may exercise the Public Trustee’s powers and enjoys the same immunities, subject to any conditions the Public Trustee imposes.

Agents around the country

Papua New Guinea is large and the Office is not everywhere. Sections 4 and 4A let the Public Trustee appoint agents by an instrument of appointment that must state the purpose, the powers and the functions delegated, and must be published in the National Gazette.

An agent acts under the Public Trustee’s direction, may be required to give security, and may be paid a commission not exceeding 10% of moneys collected through the agency. If someone tells you they are acting as the Public Trustee’s agent, the instrument of appointment is a public document — it is gazetted.

What the Public Trustee actually does

Section 5A lists the functions, and they are broader than most people expect:

• administer and distribute a deceased person’s estate in accordance with section 25 of the Constitution;
• administer and distribute testate estates — estates where there is a will — under the Wills, Probate and Administration Act (Chapter 291);
• administer a trust or estate for a minor;
• administer a trust or estate for a missing person; and
• administer an estate as directed by a court.

Section 9A adds duties under other laws: administering a trust or estate for a person under the Mental Health Act 2015, an estate in an insolvency case under the Insolvency Act (Chapter 253), and the assets or income of a person convicted under the Organic Law on the Duties and Responsibilities of Leadership.

Note the limit in section 5A(2): a trust, an insolvency or an insane person’s estate is not an inherent function — those come in through the specific laws that confer them, not automatically.

Powers worth knowing about

Section 5B gives the Public Trustee a set of operational powers. Several will matter to an ordinary family:

• may issue directions to deal with an estate valued at less than K50,000 — a streamlined route for small estates;
• may distribute estate assets where a beneficiary is missing, with the approval of the Court made ex parte;
• may accept or reject a claim against an estate that is statute-barred;
• may institute civil recovery proceedings against a person who defrauds an estate; and
• may direct a beneficiary to indemnify the Public Trustee, or to pay costs, where litigation affects the estate.

Who watches the Public Trustee

The Office handles other people’s money, so the Act builds in controls. Receipts must go into an approved bank account and cheques must be countersigned by an officer appointed by the Secretary for Finance (section 28). Six-monthly returns go to the Secretary for Finance (section 30). The Auditor-General inspects and audits the accounts under section 31. An Investment Advisory Board established by section 8A advises on investing trust money held for minors and others.

And under section 34, a person interested in an estate can go to the National Court and make the Public Trustee show cause. That provision is the subject of part 6 of this series.