In certain circumstances, it is unclear to whom or how a deceased estate should be distributed.

What is a Benjamin Order?

When faced with uncertainty about who should rightfully and legally inherit from an estate, an executor has the option to seek a declaration from the Court in the form of a Benjamin Order.

A Benjamin Order derives its name from the decision in Re Benjamin; Neville v Benjamin [1902] 1 Ch 723.

The terms of the Benjamin Order will set out the basis for how the estate may be distributed based on events that have or have not happened, beneficiaries that cannot be located or identified, or where it is unclear whether any person may have a claim on the estate in the future. Once a Benjamin Order is made by the Court, the executor is no longer liable for distributing the estate even if the factual basis for the distribution turns out to be wrong.

When is one needed?

The need for a Benjamin Order often arises when people die without a Will or there has been a lack of appropriate estate planning. In NSW, under the rules of intestacy, certain living relatives receive an interest in a deceased estate, but if very little is known about a deceased person’s family history, it can be difficult for an executor seeking to administer the estate to determine who and where any living relatives may be. In the decision of NSW Trustee & Guardian; In the Estate of Rex [2015] NSWSC 841 the NSW Trustee and Guardian sought a declaration from the Court to allow them to distribute a deceased estate to the only living brother they could locate.

The deceased died in Sydney, NSW but was born in Germany in 1939. His parents were able to be identified, although they had predeceased him. It was also discovered he had 2 other siblings. One of his siblings predeceased him leaving only one surviving sibling. The Court considered whether reasonable investigations had been undertaken by the executor to determine whether the deceased had married, had children, been in a relationship or had any other full or half-blood siblings.

The judge said, “the Court is satisfied that, in all the circumstances, all reasonable searches have been undertaken to explore those possibilities. To require the trustee to undertake further searches would be to engage in an unnecessarily expensive and time consuming exercise with no reasonable prospect of finding out any further information.” On the basis that the Court was satisfied there were no other persons entitled to receive an interest in the estate other than the surviving sibling, orders were made as follows:

  1. That the NSW Trustee & Guardian be at liberty to distribute the estate of the deceased, who died on 27 February 2012 in the manner set out below in the absence of conclusive evidence that the deceased was survived by: a. Any person who was his spouse; b. Any issue (children); c. His father; and d. Any siblings other than [the deceased’s brother].
  2. That the trustee be at liberty to distribute the deceased’s estate to [the deceased’s brother].
  3. That the trustee’s costs of these proceedings be paid out of the Estate of the deceased on the indemnity basis.
  4. The exhibit may be returned.

Whilst Benjamin Orders are not common, they are a useful method of ensuring that a deceased person’s estate can be distributed after reasonable efforts have been undertaken to determine who the rightful heirs and beneficiaries may be.