It is not uncommon for a trustee/executor to be unable to locate beneficiaries under a will. In some cases, they may have passed away, departed the country or simply be unable to be located. However, if the estate is distributed and the missing beneficiary later appears to claim their entitlement, the trustee may be personally liable.
To avoid any such risk of liability in such cases, a trustee needs to apply to a court for specific orders.
Benjamin Order
Commonly known as a Benjamin Order, taking its name from the case Re Benjamin: Neville v Benjamin [1902]1Ch 723, there are 5 factors for consideration in exercising the discretion.
In the recent decision of Nordeck -v- NSW Trustee and Guardian [No 2] [2026] WASC 217, Master Russell dealt with such a matter.
- Where a beneficiary cannot be located, evidence that the beneficiary has died is not required to make an order under s 66 Trustees Act 1962 (WA). The jurisdiction to make an order arises ‘on the basis of the practical probabilities of the facts as known to the court at the time of making the order’.
- An order under s 66 is not a positive declaration of rights and is made regardless of the fact there may be some uncertainty as to the existence of a beneficiary.
- All that is necessary for making an order is that the court is satisfied that it is probable that the beneficiaries ‘have been ascertained and that no reasonable further enquiries could be made which would improve the state of the evidence’.
- The size of the estate may be a relevant factor in determining the reasonableness of any further enquiries. The effect of an order under s 66 is to relieve an administrator from liability if the basis on which the estate is distributed turns out to be wrong, not to extinguish any right of a missing beneficiary who is later found.
Steps to be taken
Steps that an executor/trustee should take to locate a missing beneficiary might include but are not limited to:
- Newspaper and government Gazette advertising
- Electoral role searches
- Property registers searches
- Registry of births deaths and marriages
- ASIC searches
- Enquiries of family members and known friends and associates
The conduct and outcome of such searches need to be set out in a comprehensive affidavit by the trustee or solicitor acting for them.
Whilst Nordeck was a Western Austrian decision, each state of Australia has similar legislation permitting an application for a Benjamin Order.
The form of actual orders made will vary from case to case, but essentially will grant the trustee liberty to make distributions in an estate according to the terms of the will to the named beneficiaries who are identified, and treat the missing beneficiary as having died before the testator. Costs of such applications are usually payable out of the estate.
Get advice and assistance
If you are an executor or trustee and cannot locate a beneficiary Rostron Carlyle can assist you in advising and conducting any available or necessary searches to protect your interests and facilitate the estate distribution.
Contact Michael Sing, partner of Rostron Carlyle on 07 3009 8444 or visit www.rclaw.com.au to arrange a confidential consultation.
The blog published by Rostron Carlyle is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Rostron Carlyle on any legal queries concerning a specific situation.
