Benjamin Orders & the Missing Daughter

Ian Roderick Douglas died in February 2013 aged 72. Ian was unmarried, with an estate valued at $ 1,250,000. In a Will (“the Will”) made in May 2010, he appointed David Cummins and Barry Miller as his executors (“the executors”) probate of the Will was granted to them in May 2013.

Following payment of debts and other pecuniary legacies the Will distributed one half of the residue to his daughter Darcel Wu; the other half of the residue was left to a daughter he had yet to find, whose name and whereabouts were unknown to Ian at the time he made the Will but who he believed lived in Victoria (“Victorian daughter’).

“If it can be established that the Victorian daughter died before me leaving children then her children shall take the share which their mother would otherwise have taken. If my Victorian daughter cannot be found or is proved not to have survived me and to have died without children then the share she would have taken shall pass to Darcel.

Darcel was born in 1964, and until she was 17 believed that her mother’s husband was her father, she met Ian about 1990, following which they met infrequently. In 2012 Ian told Darcel that he had been made aware that he had fathered a daughter who lived in Victoria who he wanted Darcel to meet once his Victorian Daughter had been located.

Neither the executors nor the persons who were given pecuniary legacies by the will had any knowledge of Ian having another daughter. Ian told Darcel that he did not know the name of his daughter or anything about her, only that she might exist.

Establishing the identity or whereabouts of the Victorian Daughter to whom part of Ian’s estate should be distributed and the inability, despite adducing all available evidence, of ruling out the possibility that she exists or had descendants who might still be alive adds considerable difficulty to the executors’ duties. Unless after considering the available evidence the Court orders that the executors may distribute the estate, administration of the estate cannot be finalised.

The executors were unable to identify or locate the “Victorian daughter” and applied to the Court seeking a “Benjamin order” allowing them to distribute the whole of the estate to Darcel without prejudice against the rights of the Victorian daughter (or her children) to claims to a half share of the residuary estate.

A “Benjamin order” is named after Re: Benjamin; Neville v Benjamin 1902] 1 Ch 723. Where a beneficiary was presumed dead having not been heard of for seven years. The Will maker died less than a year after the beneficiary was last heard of. A “Benjamin order” relieves the executor from liability if the estate or part of it was distributed to the wrong person.

An example of orders usually sought are:

1. a declaration that the beneficiary predeceased the deceased;

2. in the alternative, an order that the plaintiff be at liberty to distribute the estate;

3. in the alternative, the plaintiff seek the opinion and advice and direction of the Court in respect of the facts set out in the plaintiff’s affidavit; and

4. an order that the plaintiff’s costs be paid out of the estate on an indemnity basis.

The plaintiff is required to carry out all necessary and proper investigations to determine the persons who are or may be entitled on intestacy to the estate.

The Court was satisfied that all reasonable attempts had been made by the executors to locate the beneficiary, and ordered that they were free to distribute the estate to Darcel without personal risk. The Court further held that no conditions (such as a grant of security by Darcel ) should be placed on the order.

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