Leonard Mas died in August 2014. His wife Helen died in 1995. Leonard had no children and no siblings, however Helen had two sisters and five brothers, who had twenty-five children.
Leonard’s will dated 19 June 2014 (“the Will”) appointed his brother in law Douglas Weston and his Nephew Andrew Donaldson as the executors and trustees of his estate. Probate of the Will was granted in June 2015.
Clause 3(b) of Leonard’s will provides for the residue of his estate to be distributed equally between my nieces and nephews or the survivor of them.
As Leonard had no siblings he had no nieces or nephews who are blood relatives (by consanguinity). Twenty-one of Helen’s siblings twenty-five children (nieces and nephews by affinity), are living and three nephews are deceased. Of the deceased nephews, one had no children, another had two children and the other had five children. Despite extensive efforts Douglas was not able to locatethe remaining nephew Robert Weston.
Douglas sought the Courts determination of the following questions arising in the administration of the estate:
- Does the expression ‘my nieces and nephews’ in the will mean the nieces and nephews of his wife, Helen.
- If the answer to the question (a) is ‘yes’, should the gift contained in paragraph 3(b) of the will of the abovementioned deceased take effect in favour of the nieces and nephews of his wife Helen?
- Can the executor be entitled to cease any further searches for [Robert] Donald Weston [born 20 September 1964]?
- If the answer to the question [(c)] is ‘yes’, should the executor be at liberty to distribute or apply any share of the estate to which [Robert] Donald Weston may be entitled to the remaining ‘nieces and nephews’ of his wife Helen.
The Court discussed the construction of the Will and held that as Leonard executed his will two months before his death and there was no suggestion of any testamentary incapacity therefore the expression ‘nieces and nephews’, which is unequivocally theoretically capable of being applied to both nieces and nephews by consanguinity and nieces and nephews by affinity. Therefore in answer to questions (a) and (b) is yes.
Robert Donald Weston
Douglas has sought A Benjamin order regarding the inability to locate Robert Donald Weston. A Benjaminorder takes its name from the decision in Re Benjamin; Neville v Benjamin.[In that case, following enquiries made to ascertain his whereabouts, Philip David Benjamin was presumed dead, with the result that the benefits accruing to him under the deceased’s estate were redistributed to the other beneficiaries.
The effect of a Re Benjamin order is to enable the executor to distribute the estate to those members of the class that have been ascertained at the time of distribution, whilst ensuring protection of the executor if a person entitled to a portion of the estate subsequently appears. If such a person does appear, he or she is not entitled to make a claim against the executor for that portion but may claim against beneficiaries who have been paid incorrectly.
If a Re Benjamin type order were considered appropriate in the circumstances of these proceedings, it may be necessary for the Court to order that further enquiries be undertaken, to ascertain whether members of the class can be located, prior to any distribution of the gift contained in the subject clause.
Douglas applied for a Re Benjamin order submitting evidence that he and his solicitor had undertaken an extensive and exhausting search for Robert Donald Watson including a instructing a Legal Genealogist to investigate his whereabouts. Unfortunately he has not been located nor has it been established that he is alive. The Court held that evidence submitted by Douglas revealed gaps in the search for information for the whereabouts of Robert Donald Weston. Accordingly, further enquiries and searches are necessary before distribution of Robert Donald Watson’s share of the estate.
Interestingly this is another example of the importance of written expression in the construction of a Will. If Leonard had siblings with children the situation could have been very different.
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