BENJAMIN ORDERS AND PETITIONS OF ENQUIRY
A personal representative is not only obliged to perform his duties, but to perform them diligently, or at least prudently.
While the administrator is required to act diligently and save the estate from all unnecessary expenditure, it is clear from the case of Re Gunning that he must act prudently to ensure that the beneficiaries receive their share of the estate, and if as a result of his “carelessness” a beneficiary does not receive their share, he may be held personally liable accordingly.
It is of the utmost importance in an administration to ascertain the whereabouts of each beneficiary. The situation may occur where the personal representative may be unable to trace the whereabouts of one or more beneficiaries.
As it would be unreasonable for the other beneficiaries to wait for an uncertain period of time before the missing beneficiary is traced, the personal representative may apply to the court for what is called a Benjamin Order, to allow them to proceed with the distribution of the estate by presuming the death of the missing beneficiary. Without first obtaining such an order, the personal representative would be unable to distribute the estate and more importantly, it is an essential step in the personal representative protecting themselves from liability.
Before a court will make a Benjamin Order, evidence must be adduced on affidavit demonstrating that all reasonable efforts have been exhausted in an attempt to trace the missing beneficiaries. Notwithstanding such evidence being put before the Court, it is not uncommon for the Court to give certain directions as to what further steps, if any, it requires to be taken before making an order presuming the death of specified beneficiaries.
Usually an application is made to the High Court, on foot of a Special Summons seeking, inter alia:
(a) An Order giving the administrator such directions as to what further enquiries or advertisements (if any) that might be made in respect of ascertaining the next of kin.
(b) An Order appointing the Defendant to represent the untraced next of kin (if any) of the Deceased.
(c) An Order that the Defendant herein be permitted to represent the untraced next of kin (if any) of the Deceased.
(d) If necessary an Order of this Honourable Court giving the administrator such directions as seem proper in respect of the administration of the estate of the Deceased following upon any enquiries directed by the Court.
(e) An Order giving liberty to the administrator to distribute the estate of the Deceased amongst the known next of kin of the Deceased.
Before a court will make a Benjamin Order, evidence must be adduced on affidavit demonstrating that all reasonable efforts have been exhausted in an attempt to trace the missing beneficiaries. In that regard, in addition to the carrying out of searches with the relevant authorities, two advertisements should be placed in two publications which are circulated in the region in which it is believed that the beneficiaries are located. There should be one week’s interval between the advertisements.
Once all reasonable avenues have been exhausted in an effort to locate the missing beneficiaries, and no beneficiaries are located, an application can be made to the court seeking, inter alia, an order presuming that the missing beneficiaries are dead, not having been heard of for a period in excess of seven years.
If the Administrator proceeds to distribute the estate without obtaining a Benjamin Order, there is a real and serious risk that he could be held personally liable to the untraced beneficaires for their share of the estate.
Pursuant to section 45 of the Statute of Limitations 1957, the right of a beneficiary to claim their share becomes is barred after six years from the date upon which their right to receive the share or interest accrued, that is from the date of death of the Deceased.
Needless to say that the distribution of the estate cannot be held up indefinitely and the decision to distribute the estate must be made in light of the risk of a beneficiary turning up in the future and although their claim will be statute-barred, this will not prevent them from issuing proceedings claiming that an equitable trust arose for their benefit. It would also seem to be open to any potential claimant to allege wrongdoing on behalf of the personal representative, in that they knew of the existence of a beneficiary and took no or inadequate steps in which to trace that beneficiary.
On a separate note, it may be necessary to institute a petition of enquiry in order to ascertain the identity of the unknown beneficiaries to an estate to ensure that all those who are entitled to share in the distribution of an estate do so. Such circumstances typically arise on intestacy where a bachelor who was survived by neither sibling nor parent and next of kin are not readily forthcoming.
It is of importance to differentiate the above situation with that of a Benjamin Order, where the identity of the beneficiary is known but their whereabouts are not. However, petitions of enquiry typically involve Benjamin Orders as a relief sought therein.
Whilst there appears to be no time limit for the bringing of such applications, it goes without saying that the parties must act with due expedition, so as not to delay the administration of the estate.
DISCLAIMER
This paper is intended to summarise the law and while every care has been taken in the preparation of this material, no responsibility can be taken by the author for any errors or omissions and no responsibility can be accepted by the author for any loss occasioned to any person acting or refraining from acting in reliance on anything contained therein.
© Karl Dowling 2016
