The Benjamin Order’s Impact on Estate Administration

When it comes time to administer a deceased individual’s estate, distributing assets among beneficiaries isn’t always a straightforward process.

In some cases, the executor may find that a certain beneficiary’s whereabouts are unknown. This adds an additional layer of difficulty to the administration process and, often, those involved aren’t sure how they ought to proceed.

This typically brings about the question: what happens to any assets a now unreachable beneficiary was set to inherit?

Beyond this, the formal distribution of estate assets cannot be finalised until the Court grants the executor ‘liberty’ to complete their duty. This is a legal requirement as there’s uncertainty surrounding a relevant factual matter, which is, in this case, the location of a certain beneficiary. In such instances, administration is brought to a halt until the Court can determine, based on factual evidence, that the estate can be distributed.

This means that the missing individual, as well as all other beneficiaries of the estate, won’t receive their inheritance until matters are resolved.

Luckily, there is an established legal process that accounts for such circumstances, which is referred to as The Benjamin Order. This ensures that, if an executor is faced with the dilemma of missing beneficiaries, they have clear legal guidelines to follow.

The Benjamin Order & its Implications

For The Benjamin Order to be actioned, the Court must first establish beyond a reasonable doubt that the missing beneficiary has predeceased the testator.

Cases aren’t always clear-cut and concrete. While in some instances a death certificate may be obtained relatively easily, in others information like this isn’t readily available (or available at all).

In such instances, for applications to be approved, it must be shown that the executor conducted numerous searches to locate the unreachable beneficiary. These searches need to be considered sufficient by the Court, being that the individual took adequate measures to determine the missing person’s whereabouts.

At this point, if it’s found that a beneficiary has an unexplained absence of several years, the Court will likely presume their passing. This is also the case if other convincing factual evidence supporting such conclusion is discovered and submitted to the Court.

If it’s established that a Benjamin Order is appropriate in the given circumstances, liberty is granted to the executor. Once the Court has determined how the estate ought to be distributed according to intestacy laws, the executor can administer the testator’s assets to known beneficiaries accordingly.

Intestacy & The Benjamin Order

It’s also worth noting that, if at the time of their passing a testator doesn’t have a valid will, intestacy laws will come into play.

But why is a Benjamin Order sometimes required in such circumstances?

In some instances, even after conducting extensive searches, the estate’s administrator is unable to identify and locate certain individuals who are entitled to an inheritance.

So long as the executor has taken reasonable action, the Court typically will not require them to continue searching indefinitely. This is because, often, any further searches are deemed unnecessarily costly for the administrator.

If the Court is satisfied that, given the information presented to them, the only surviving beneficiaries have been found and notified, The Benjamin Order can be enforced. This will, ultimately, allow the estate to be distributed accordingly.

Case Study: The Estate of Hansie Hart [2019]

When an individual is assigned to inherit a portion of an estate after smaller gifts and/or valuable are administered, they’re known as the principal beneficiary.

In the $57,000 Estate of Hansie Hart [2019], a principal beneficiary, Chris Brells, couldn’t be located.

Thus, whether the estate’s administrator, Clare Caple, could inherit the involved assets as a residuary beneficiary came into question. For this to be approved by the Court, it had to first be established that the principal beneficiary Ms Brells predeceased the testator.

Between 25 January 2017 and 22 June 2018, a number of thorough and extensive searches for Ms Brells were conducted. During this time, attempts to locate Mrs Brells were made using Facebook, White Pages, the electoral roll and a genealogy service, to name a few.

In May of 2019, a private investigation firm sought out to identify the Chris Brells mentioned in Hansie Hart’s will – their efforts were unsuccessful.

With all of this in mind, the Court determined that a Benjamin Order would be appropriate given the case’s circumstances.

The following was also considered in the final ruling:

  • It was reasonable to infer that Mrs Brells and Ms Hart were of a similar age. Given that Ms Hart was 97 when she passed away in 2016, it was thought to be unlikely that Mrs Brells would have survived her.
  • Mrs Hart’s estate was relatively small and, because of this, it was deemed unreasonable for the estate to be diminished by further searches.

Speak With an Estate Lawyer

For expert advice, get in touch with our team of experienced professionals at Hentys Lawyers. We’re specialists in Will Disputes and can assist you in Contesting a Will, Challenging a Will and Defending a Will.

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