The Caswell Franklyn Column – Robbing the Dead (II)
My last column entitled, Extorting fees from the dead that was published on April 23, 2017 has caused no fewer than five lawyers to say to me that I was being unfair to them.
They claimed that the process of administering small estates by the Public Trustee is unnecessarily drawn out. As a result, they go for the speedier option of applying to the courts for Letters of Administration. That was surprising to me since it took mere months to complete when I was the clerical officer dealing with Public Trustee matters in the 1980s. Now I am being told that the process can take four or more years.
Their excuses simply do not cut it with me. While I am willing to accept that a small estate might not have enough funds to bring an action, in the High Court, against the Public Trustee to force him/her to do his/her duty; those lawyers must realise that the Public Trustee is not self employed. He/she is employed by the Judicial and Legal Service Commission. I am therefore forced to ask: How many of them have ever made a complaint to the commission because of the Public Trustee’s unwarranted delay? If one lawyer has ever done so and produces the proof, I will tender an unqualified apology.
I also had several calls from persons who went through some disturbing experiences while trying to gain access to the few cents that remain on their deceased relatives’ accounts. One lady in particular told me that her husband died and left a mere $3,400 on his bank account; she went to the bank but they insisted on Letters of Administration; and thereafter she consulted a lawyer who quoted a fee of $3,000. At that point, she gave up because it would have been too much trouble to get $400. I assured her that all was not lost if she had paid or was responsible for the funeral bill.
Over the years, a practice has developed where banks would release enough funds to cover the funeral expenses. In this case, the bank quite rightly refused to interfere with the account of the deceased person, without lawful authority. Prior to the grant of administration or probate of the will, the only person who can authorise any transaction, on the account of a deceased person, is the Public Trustee. Sections 6 and 44.(3) of the 1975 Succession Act are relevant. Section 6 states:
“Where a person dies intestate or dies testate but leaving no executor surviving him, his real and personal estate, until administration is granted in respect thereof, shall vest in the Public Trustee”.
(A person dies intestate if he/she dies without leaving a will).
Section 44.(3) states:
“Subject to subsection (4), in the event of the death of any person to whom any sum of money is payable by the trustee of a superannuation fund, a society, a bank, an employer of the deceased person or the Crown, it shall be lawful for the trustees of the superannuation fund, society, bank, employer or the Crown, as the case maybe, without requiring probate of the will or administration of the estate of the deceased person to be obtained, and with the consent of the Public Trustee, to pay such sum of money or any part thereof to the person who has prior entitlement to administer the estate of the deceased, for the purpose of paying the funeral, testamentary and administrative expenses, of the deceased person, or of refunding the amount of such expenses to any person who has paid them.
As the law stands now, the Public Trustee can administer small estates, up to a value of $15,000, without applying to the High Court for Letters of Administration. There would be no need for lawyers and legal fees to deplete the funds available to the beneficiaries. Mind you, I am of the view that the figure of $15,000 is too small to be of any real benefit to the vast major of poor people. That figure was set 79 years ago by Rule 9.(1) of the 1938 Public Trustee Rules.
It is about time parliament resumes its mission of looking out for the most vulnerable in this country, rather than provide opportunities for lawyers to make money to the detriment of the poorest in society. A good start would be increasing the value of small estates that can be administered by the Public Trustee.