Last week, the Colombo District Court allowed the Public Trustee Department to open the last will of 254 people. Public Trustee, W.G.S. Weeratne speaking to Daily News said, he embarked on the beginning of this legal quagmire as a means to bring justice to all those who had faith in the Public Trustee to do the right thing for the last 87 years, so that the Public Trustee can finally grant the wishes of all these men and women who have passed away having had faith in the Trustee.
You recently received a court order to open 254 last wills of people given to you between 1931 and 1992. Can you explain the issues surrounding this and why were they not opened before?
Under the Public Trustee’s Ordinance No 1 of 1922, Section 38, which came into effect on 22 November 1930, it says that the Public Trustee may accept the will of any living person subject to the payment of a subscribed fee. That is the power entrusted in the Public Trustee under the Ordinance. In simple terms, to be the Public Trustee of the country, you have to be impartial, unbiased, independent and a trustworthy citizen of the country. He has a mandate to accept wills for the purpose of safekeeping. From 1931, members of the public have come and deposited their wills with the trustee by paying a nominal sum of like Rs 25-30. When I assumed office as the Public Trustee in May of last year, I came to realise that there was a safe full of last wills. That amused me and I wanted to know why they have been lying here for so long. And then when I investigated, I realised that these last wills date back to 1931, since the time we started operation.
When you look at the law of the country at present and in 1931, for a person to be able to write a last will, you have to be at least 18 years of age. But we all know in the Sri Lankan context, no one thinks of writing his/her last will at 18. It is usually when you are past 40-50 years of age that you start thinking of a last will. Even if we assume that the person was 18 years old, the bare minimum age in 1931, by 1992, well and truly that person is over the age of 80. This is assuming that the person was only 18, which is highly unlikely and not practical. So by 1992, it is not rocket science to think that these people are probably no longer in existence.
In my personal and professional view, the Public Trustee has an obligation and duty to have taken steps at the very least to see if these people are alive or not.
Are you saying that the Public Trustee thus far does not know whether these people are alive or dead?
No, we still don’t know. People have been coming to us, they still come to us, they now pay a nominal fee of Rs 50 and they put their last will into an envelope, we seal it before them and that gets put away in a locker. I, as a Public Trustee am not entitled to open it unless and when I am made aware that the person is no longer there by a relative or through a public notification. Having said that, common sense should have prevailed to know that a person in 1931 is probably no longer there. There should have been steps taken to ascertain that information.
Have the relatives of these 254 people also not approached you to find out about the last will?
I have not seen any record of that. At the very least, we should have put out newspaper publications asking whether A,B,C,D,F is dead or not.
So there is no mechanism in the Public Trustee to check whether after a certain number of years, that person is dead or alive?
That should have been there. At least once in 12 months, investigations or inquiries need to be done to see whether the people who deposited the last will are alive or not. Otherwise what would happen is, if we did not get the court order we got 2 weeks ago, these 254 last wills will be sitting here for the next 30-40 years to come.
You may ask, why did we stop at 1992? This was because when I sought legal opinion, we looked into statistics and we saw that the average life span of a Sri Lankan male is taken to be 72 years of age and female 76 years. So we went back from 2018 to 1992, which is 26 years and anyone who has deposited his last will subsequent to 1992 could still be alive. But there is no guarantee to say that is the case, we would have to investigate that also.
But first and foremost I thought it was a must to sort out these 254 unopened last wills.
But do you still have the records of the people from 1931?
Yes we have a register. They are all in brown envelopes. That’s all I know. But the sad part is, we got the court order seeking the permission of court to open those 254 wills in the presence of the registrar of courts or a court officer appointed by the registrar. The reason being is that even though I am the Public Trustee, I cannot open it, unless a relative or a known person says the person is no longer there. The court being the upper guardian can direct the Public Trustee to open it.
The case is coming up again on May 28 for the registrar’s report and then the court will issue orders on what the Public Trustee should do next.
The court gave us two days to open them, we have opened 200 of them, there are 54 more to go which we will open before May 28. Then, we have to go through each one of those last wills. I can say that of the 200 last wills we have opened, about 95 percent of them are last wills where the Public Trustee is the executor.
That is more responsibility on the Public Trustee. It was heartbreaking to see that some of these last wills, especially in 1931, they may have been 40-60 years at the time, they have asked that certain amounts of money be deposited to their daughter or son. The Morris minor car be given to this child, etc but we are talking of something that has happened 87 years ago. I don’t even know where that car would be now. It breaks your heart to know that a member of our community who has left something back in 1931, in the absolute trust in the Public Trustee has not had his/her will granted. Say I have left my own property, which is very valuable to me, it is my hard earned money and I leave it for my kith and kin. But the Public Trustee sits on it for 87 years without doing anything. I can’t justify that.
Those people who came and registered their wills, did they not give any personal details at the time so you can trace them?
No we just take down their name and sign. There is a bare minimum of information on the register. It is all inside the envelope. Those are systems which need to be updated, you need to get a contact number, next of kin to contact, email, etc to trace. We don’t know how many are alive but we can safely assume that the majority are not living.
People who come to you with a will I am guessing trusts you more than his own family to execute his last wishes?
Yes. All of us know that not all in a family are in the same wavelength. You pick a neutral person so that they can execute your will without prejudice and that is the Public Trustee. It would have been probably back in the 1930-50s, where people would have placed a lot of trust in us. But it is not that different now, people still come to us.
Statistically what’s the difference between then and now? Have you seen a decline in people coming to the Public Trustee?
No the numbers are the same, they are not that different. People come to open Trusts and deposit their last wills. They can deposit a last will in two ways; one is you make the Public Trustee the executor or you may just keep it for safe custody with us and another is appointed as executor.
All those 254, until we opened them last week, we didn’t know if we were the executor or just trustee. The sad part is we will probably have 254 testimonial cases to initiate.
Could you explain how such a case would work?
When a person leaves a last will, under the system of law in our country, testimonial proceedings of all these wills will have to prove whether they are the genuine last will of the deceased. This is where you will encounter objections from people and if it is contested, the judge will have two last wills before him/her, and see which is right and wrong.
It will take many years then?
It will take a fair bit of time. And if you are looking at property, and at least half; 125 of them will have real estate worth billions and then the issue is, these properties may for the past so many years been misused, unlawfully or illegally occupied. To evict those persons would mean more legal action, so these court cases could very much double.
The other issue is, most have had money in the bank. According to our monetary regulations, if an account is dormant for a certain number of years, the money gets sent to the Central Bank. So these accounts which may be dormant for so many years, may have millions in them or at least accrued several millions in interest alone.
You have opened a Pandora’s Box?
I believe I have done the right thing, keeping in line with the mandate of the Public Trustee. The way I see it is that if I did not do it during my tenure, it might sit there again and we will be bundling up paper which will deteriorate.
And that is not justice. We are talking about over a billion worth of real estate and property which can be jewellery, vehicles, money, etc.
One of my officials was saying that there was property overseas. I don’t think I would have been able to justify not doing it by putting it into the ‘too hard’ basket.
I knew for a fact when I opened them, that some were no longer there.
Do you plan to at least now institute a mechanism where the Public Trustee can track these wills?
Yes, I plan to introduce a system where we will do a systematic checking mechanism on an ongoing basis to ascertain whether these people who have deposited these wills are still alive or if they are no longer with us. So it doesn’t pile up to a number we have now. So it will be a smooth system which gets monitored for the benefit of all Public Trustees in future.
Have you had any people approach you for these wills after opening them?
We have got a few phone calls. My response has been, please bear with us, we are taking necessary steps according to the law of the country. In the meantime we are making our own list, we need to know how many have the Public Trustee as the executor or how many of them we have just held in safe custody. Once we know that, under the directive of the court, necessary steps will be taken. Things won’t happen overnight.
Realistically speaking, how much of these assets do you think are recoverable?
I think we should be able to trace everything back. I know that if an account lies dormant for a particular period of time, yes the money does go back to the Central Bank but they have a record of that. So that money should be traceable but the bigger problem I would say is real estate. In Sri Lanka we know that if you leave a block of land whether in Colombo 7 or in a remote place, if it is not being dealt with legally, there is a high probability that it is being illegally occupied or unjustly enjoyed by a third party. And that would have happened going into the second generation.
There are some properties extending 30-40 acres.
We have now an uphill task of rectifying it.
Do you have the required cadre and resources to handle all these cases?
We don’t have the resources at the moment if we are litigating 254 cases and that could double in future. But we can overcome that by seeking assistance from external legal firms because the right thing has to be done by those 254 people. This is their entire life savings.
We owe this to those 254 people, there is no compromise here.
Will resolving these wills be your legacy?
I put up my hand to be a Public Trustee because it is a very honourable and dignified post. The more transparent you are, the more financially accountable you are, more faith people will have in you. If you want to deposit your last will or whilst you are alive, you want to donate your property to a Trust, you will draw up a Trust deed with the Public Trustee and say these are my objectives which need to be fulfilled. For example, I want these payments made to the poor, religious institution, for medical assistance. We have over 1,100 such Trusts. People don’t come to us because they see us whilst driving past Bauddhaloka Mawatha. They will only come to us if the Public Trustee is seen doing what he is supposed to be doing. Not if the Public Trustee is tucked away and has 254 unopened last wills in a locked up cabinet.
So you see this as a step towards restoring trust in the Public Trustee?
Yes that is my objective. It has nothing to do with me, it is the image and the glory of the purity of the office, which I am keen to regain, if for whatever reason it was at the level it should not be in.
I feel very uncomfortable thinking of these 254 people whose inheritance has not been done justice.
It is a dead man’s wish. My Deputy Trustee was saying that when they opened the wills, most said that things should be done at the absolute discretion of the Public Trustee, so such was the faith people had in the Public Trustee.
We have 22 million people in Sri Lanka. We have one Public Trustee Office in the country thanks to Sir D. B. Jayatilaka. This was his own house he donated to the Public Trustee and he was the person who was instrumental in setting this up. In his last will, it is stated that as long as the Public Trustee’s office operates in Sri Lanka, it has to do so from his house. In New Zealand, there are 5 million people. They have 27 regional branches of the Public Trustee Office. We maintain 1,100 Trusts and 12 estates while they have about 5,000 Trusts and maintain around 250 big dairy farms. So this concept is a very noble concept but you have to take it to the people as a service. It is not fair for a person in Jaffna to come to Colombo to see the Public Trustee or someone from Galle to come here. Why can’t we have regional offices? You need to take it out, become more transparent. That is what is needed. We need an active website (it hasn’t been active for the last 10 years). I have to be in a position to publish the financial statements of all the properties we manage. When you open it out like that, people will start having faith and ‘trust’ in the Public Trustee.