The Benjamin Order

What is the Benjamin Order?

Frequently the executor or administrator (‘personal representatives’) of an Estate are faced with the problem of having to distribute the Estate to missing beneficiaries. This being that they may be struggling with locating their identity or whereabouts, and have deduced that perhaps they are deceased.

The problem is that unless the Court orders the personal representatives to be at liberty to distribute the Estate, they cannot finalise its administration and all other beneficiaries do not receive what they are entitled to.

This ‘liberty’ is described as a ‘Benjamin Order’: An order made by the court for the distribution of assets on death, when it is uncertain whether a beneficiary is alive. The name derives from the case of Re: Benjamin; Neville v Benjamin[1].

This order enables the personal representatives to seek a declaration from the Court on who should benefit. Once this declaration is made, the personal representative is no longer liable if they distribute the Estate to whom they believe are the correct beneficiaries, even if more entitled beneficiaries are subsequently discovered.

Application to today

This Order has stood the test of time and is available to personal representatives today, over 100 years later.

A prime example is the 2015 New South Wales Supreme Court decision of NSW Trustee & Guardian, Re; Estate of Rex[2].

Facts:

The situation is such that the deceased, Karl Rex immigrated to Australia from Germany in 1962 and as far as could be ascertained never married or had children. He has two younger siblings, a brother and a sister. His younger sister died in a traffic accident and mother died during the Second World War.

When Karl died, he had no Will and his Estate was therefore required to be distributed in accordance with the laws of Intestacy.

After extensive searches to find surviving relatives other than Karl’s brother, the applicant (administrator) applied for a ‘Benjamin Order’. This was because despite extensive searches, he could not be certain whether all surviving siblings or children had been identified.

Decision:

The court held that to require the administrator to undertake further searches would be unnecessarily costly both in time and money. It was satisfied that the practical probabilities were that Karl’s only surviving relative was his brother and thus invoked the Benjamin Order.

If you need any advice on being an Executor named in a Will, do not hesitate to contact the team at Hentys Lawyers today.

We can also help with defending wills and will disputes.


[1] [1902] 1 CH 723
[2] [2015] NSWSC 841

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