What happens if a beneficiary of my Will goes missing?
With the return of overseas travel and the ever-developing ability for people to live and work all over the world, locating the after the death of a testator has become more difficult. This issue has furthered the need to ensure you have a Will that is properly drafted by an experienced Solicitor, who can do more than just prepare your Will, but also ensure that there are enough details about your estate and the beneficiaries of your Will to ensure that your Executor can locate your beneficiaries after you have passed away. So, what happens if a Beneficiary cannot be found? Several options are available to your Executor. However, in the worst-case scenario, they may need to apply for a Benjamin Order from the Supreme Court. A Benjamin order was first established by the Chancery Court decision in re Benjamin; Neville v Benjamin [1902] where the court decided that it could order the redistribution of a deceased estate when a missing beneficiary is presumed dead. A Benjamin Order was more recently considered by the court in the matter of Application of Roberts [2023] NSWSC in which the beneficiaries were the deceased's five children - one of the five children had last been seen on a hitchhiking trip with his fiancé at Byron Bay in 1979 and had never been seen or heard from since. After considering all the evidence available, the Court ultimately determined to re-distribute the estate amongst the remaining beneficiaries – but only after a long and expensive hearing at the expense of the Estate.
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Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.
