Intestacy, Delay, Benjamin Order, Bona Vacantia

Henry Lewis Cooper died intestate in May 1996 aged 79. The gross value of the Henry’s estate was approximately $47,000, and the amount now held following realisation of  assets and payment of liabilities is approximately $54,000.

Henry never married or had children, had no de facto wife and died with no close relatives. The Court appointed the NSW Trustee and Guardian (“the Trustee”) as administrator of Henry’s estate in July 1996. A notice of intended distribution of the estate was published in August 1996 no claim has been made by any person as next of kin.

The Trustee applied for a “Benjamin order” which would permit the Trustee to distribute the estate on the basis that there was no person entitled on the deceased’s intestacy and the estate should, therefore, pass to the Crown as bona vacantia.

A “Benjamin order” permits the executor or administrator of a deceased’s estate to distribute the estate on a particular factual basis notwithstanding that there is some uncertainty about a factual matter relevant to the distribution.

A Benjamin order enables trust property to be distributed in accordance with intestacy regulations whilst protecting the executor from liability if a person entitled to a portion of the estate subsequently appears.

In support of a Benjamin order, an applicant must disclose:

• Who is (or may be) entitled to that part of the estate which is in issue
• What difficulties lie in the way of distribution
• What evidence has been gathered directed to the difficulties
• What attempts have been made to plug gaps in the evidence
• The nature and the extent of advertising to alert those who have an interest in the estate.

Importantly a Benjamin order doesn’t prevent a beneficiary from instituting proceedings against the person amongst whom the estate has been distributed to compel them to refund (in whole or in part) what has been received.

The order of distribution is,

1. To the deceased’s spouse or de facto spouse.
2. To the deceased’s issue.
3. To the deceased’s parents.
4. To the deceased’s brothers and sisters of whole or half blood.
5. To the deceased’s grandparents.
6. To the deceased’s uncles or aunts
7. To the Crown as bona vacantia

The Trustee was able to submit evidence that satisfied the Court that Henry’s parents and all of his siblings predeceased him.  The remaining question is whether any grandparents or siblings of his parents survived him. The fact that as Henry was 79 years old when he died renders the remaining question as to whether he was survived by his grandparent or any aunts and uncles extraordinarily unlikely.

The Court was satisfied, on the evidence, that the possibility there were some person entitled to the deceased’s estate when Henry died intestate in 1996 was so remote that it may be disregarded, and that a Benjamin order should be made authorising the Trustee to transfer the estate to the Crown as bona vacantia; however if a beneficiary comes forward their rights to recover a share of the estate from the Crown are not lost.

The Trustee sought an order that costs be paid from the estate. However the Court believed that in the circumstances the Trustee must make full disclosure to beneficiaries even where such disclosure might be embarrassing or potentially lead to criticisms of, and/or claims against the Trustee, as to why it took more than 21 years for the application for a Benjamin order to be made.