What is a Benjamin Order?
A Benjamin Order is a Court Order, originating from the case Re Benjamin [1902] 1 Ch 723, that permits Personal Representatives to distribute an estate based on certain events having taken place or not taken place. It is often used when Personal Representatives cannot trace Beneficiaries or even figure out if they are still alive.
Case law
In the case of Re Benjamin, one of the Testator’s sons, P. D. Benjamin, was a Beneficiary of his estate. Sadly, he disappeared and was never heard of again. The Court made an order stating:
“In the absence of any evidence that the said P.D Benjamin survived the testator, let the trustees of the testator’s Will be at liberty to divide the share of the testator’s estate devised and bequeathed in favour of the said P.D. Benjamin, his wife and children, upon the footing that P. D Benjamin was unmarried and did not survive the testator”.
Similarly, in Re Green’s Will Trusts, Fitzgerald-Hart v A-G [1983] 3 All ER 455, the Beneficiary was presumed to have died before his Mother after going missing on a wartime bombing raid. This was officially certified by the Air Ministry in 1943. However, the Mother was adamant that he was still alive and provided for him in her Will in 1972 and Codicil in 1973. The Testator included a provision in her Will that her Son had to come forward and claim his inheritance by 2020, failing which, his interest in the estate would go to charity.
On the Testator’s death in 1976, the Personal Representatives asked the Court, amongst other things, for a Benjamin Order. The Personal Representatives did not want to delay distributing the estate to the charity for some 40 years to wait for someone that was already officially certified as having died in 1943 and they, nor the Testator, had heard from since. The Court held that the Executors could distribute the estate on the basis that the Son had predeceased his Mother and the Charities should be able to enjoy the estate from the date of her death.
Should Court action be taken when a Beneficiary cannot be found?
Court action should be considered as a last resort. The Court may also require applicants to provide that they have taken all reasonable attempts to try and locate the Beneficiary before turning to the Court. Reasonable steps could be:
- Making enquiries at the last known address;
- Making enquiries with friends, family and even employers;
- Search for or order relevant documentation such as birth, marriage, or death certificates to provide clues; and
- Instruct a third party specialising in locating Beneficiaries to try and locate the Beneficiary.
Once all reasonable steps have been exhausted, the Personal Representatives should then make an application to the Court seeking an order that effectively declares that the missing Beneficiary is no longer alive, and the Personal Representatives can distribute the estate to this effect.
Why is a Benjamin Order needed?
Personal Representatives should not proceed without directions from the Court as doing so could open them up to a claim from the Beneficiary should they resurface. It is important to remember that the Personal Representatives are personally liable in the way they deal with the administration of the estate.
The Court Order would also protect the other Beneficiaries as they would have benefitted from the missing Beneficiary’s entitlement to the estate.
How can we help
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