Unable to locate the beneficiaries in a Will?

Executors are legally required to distribute estate assets to beneficiaries in accordance with the terms of a Will. This can sometimes be a difficult role, particularly if an executor is faced with the problem of not being able to locate or identify beneficiaries.

What if I cannot locate or identify a beneficiary in the Will?

Failing to locate or identify a beneficiary directly impacts the administration process and often leaves the executor uncertain on how best to proceed with the distribution of the estate to the remaining known beneficiaries. In such an instance, the executor can apply for what we call a “Benjamin Order.”

What is a Benjamin order?

A Benjamin Order is an application made to the Court for the distribution of the estates assets to the known beneficiaries when it is unclear whether or not a missing beneficiary is alive. This order allows for executors to distribute the deceased’s property as per the Will on the presumed basis that the beneficiary has passed away.

The concept of the Benjamin Order derives from the case Re: Benjamin; Neville v Benjamin [1902] 1 Ch 723, in which one of the deceased’s sons could not be found despite extensive searches and inquiries. It was therefore presumed that the son had predeceased his father and his share of the estate was therefore distributed to the other beneficiaries.

How to apply?

For the Court to grant a Benjamin Order, the executor must show evidence that all necessary, reasonable and proper searches were undertaken to locate the missing beneficiary. These searches must be deemed sufficient yet inconclusive by the Court before an order is granted allowing the executor to distribute the estate to the known beneficiaries.

What happens once an order is granted?

Once an order is granted, the executor is excused of any personal liability in the event that the missing beneficiary comes forward at a later date and attempts to make a valid claim against them for negligent administration of the estate. In effect, a Benjamin order ultimately protects the executor from being sued if the beneficiary is in fact alive and entitled.

This however will not prevent the missing beneficiary from being able to make a claim against the other beneficiaries that received the benefit from the Benjamin Order and from the respective estate.

How can you as the Will-maker avoid this issue from happening to your executors?

1. Clearly identify each beneficiary in your Will – including their full names, residential details and contact details. This will assist the executors in locating your beneficiaries and ensuring that your wishes are carried out;
2. If you learn that a beneficiary specified in your current Will has passed away, contact your lawyer and direct them to keep a note in your file evidencing that the beneficiary has passed; and
3. Be diligent in reviewing and updating your Will every 5-7 years to reflect the changes in your life and to ensure that it still gives effect to your wishes.

Our team of professional and experienced Wills & Estates lawyers can assist with complex or simple Will preparation, and advice regarding estate administration.