You may be thinking what on earth a Benjamin order is. Don’t worry the writer was too before writing this blog.
Definition of a Benjamin Order
A Benjamin Order is an order made by the court for the distribution of assets on death when it is uncertain whether or not a beneficiary is alive. The name derives from the case of Re: Benjamin; Neville v Benjamin  1 Ch 723.
There may come a time when executors or administrators of an estate cannot identify the whereabouts of persons whom the deceased’s estate or part thereof is left. Unless the court, after considering all of the evidence, orders that the Executor or administrator can distribute the estate, then the estate administration cannot be finalized.
There is a legal requirement on the Executor or administrator to carry out all necessary and proper investigations to attempt to locate the beneficiary.
Hartnett and Cutts is a New South Wales case that relates to the administration of the estate of Fredrick Cutts who died on 21 October 1954.
Frederick Cutts was survived by four of his six children, two of whom had predeceased him without issue (children). Frederick’s Will dated 31 October 1951 left his estate to his four surviving children, George, Winifred, Clarice and Frederick (Eric).
After Frederick’s death, his surviving second wife, Adelaide, brought a successful family provision application in his estate and was awarded a life interest in some estate real property. Adelaide died on 28 October 1996. By then all of the four children alive at Frederick’s death had died. Those children had died leaving children. George was survived by Fay, Winifred by John Harnett, Clarice by Beverley and Brian and Eric was survived by Allan Cutts.
Accordingly, in the events which happened, the estate would be distributed as 1/4 to Fay, 1/8 each to Beverley and Brian, 1/4 to John and 1/4 to Allan.
The problem was that at the termination of the life interest, Beverley had died leaving a son David. David could not be located hence the application by John and Allan (now the only surviving grandchildren who by virtue of a Deed of Appointment had now become the personal representatives).
Pembroke J reviewed what attempts had been made to locate David. Searches had disclosed links in addition to NSW, the USA, NZ, Victoria and WA. Enquires were made with authorities in all those locations. Advertisements were placed in NSW, Victoria and WA. The plaintiffs had even located an incoming passenger card for David which noted an emergency contact who was also investigated.
All searches produced a negative result. His honour concluded that to impose on the executors the burden of undertaking further searches would be unnecessarily expensive, time consuming and with little prospects of success.
Searches had been underway for 18 years, the estate was modest in size and the executors were elderly.
His honour concluded that David’ share should be distributed to the two other surviving beneficiaries with costs ordered out of the estate on an indemnity basis.
If you are having trouble locating a beneficiary or require any assistance with the administration of an estate, please contact Turner Freeman Lawyer’s Wills and Estates Department on (07) 3025 9000.