Sometimes a person may die where all the details about that person’s relationships and children are unknown. That person may have a will that directs their estate be shared equally between all of their children, or may have no will in which case the person in charge (the legal representative) has the very important job of making sure the estate is distributed to the persons as specified in legislation.
This is not always a straightforward matter. Take the following case as an example.
Looking for beneficiaries
A man died without a Will.[i] He was born in South Africa, got married and then moved to Australia almost 40 years later. He and his then wife had three children together, two in South Africa and one a year after moving to Australia. About fifteen years later he and his then wife divorced.
When a person dies without a will, the law says what will occur to that person’s estate. In this instance, it appeared his estate, valued at approximately $770,000, was to be shared equally between his three children.
However, from the evidence available it wasn’t clear that the deceased hadn’t had further relationships or fathered additional children.
His legal representative, the NSW Trustee and Guardian, began to make some enquiries to determine if there were any other partners, wives or children who might be entitled to inherit, but came across some difficulties. So they decided to ask the Court whether further searches should be undertaken, and if not, whether they be permitted to distribute the estate to the deceased’s three known children.
The Court noted, that in effect, they were being asked to make a Benjamin order (named after the case Re Benjamin; Neville v Benjamin  1 Ch 723). This was an order to permit them to distribute the estate on the belief that certain events had or had not happened.[ii] This would allow the NSW Trustee and Guardian to be protected when administering the estate to the three known children.
The Court said no. Although the Court acknowledged that this was not a case where there was a strong indication that there might be another child of the deceased, there was too much uncertainty. It was not known where the deceased lived for 30 years, whether he any other partners in that time, or whether he was married again or had any other children.
The Court concluded that adequate enquiries had not been made, despite searches of the Registries of Births, Deaths and Marriages in New South Wales and Victoria having been made, which disclosed no records in Australia of the deceased ever having married or fathered or adopted other children, and despite affidavit evidence from one of the deceased’s children saying that the deceased had lived with him for the last thirteen months and that he had seen no evidence of the deceased having had any personal relationships or children after his divorce.
The Court ordered that the court proceedings be adjourned to allow various matters to be clarified. The Court noted that if the uncertainties were appropriately clarified to the Court then it might make the Benjamin order sought.
This case shows that legal representatives, whether they are executors or administrators, have an onerous task to make sure a deceased person’s estate is distributed correctly.
If you require assistance in relation to a deceased estate, contact one of our wills and estate lawyers.
[i] Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak)  NSWSC 1436.
[ii] See Application by NSW Trustee & Guardian (Estate of the late Marko Sijakovic)[2012′ NSWSC 1532 at