There can be problems in finding and identifying beneficiaries to a Will. When you make your Will, you appoint one or more people to act as your Executor when you die. The job of your Executor is to follow the wishes you set out in your Will and distribute the assets of your Estate, to the beneficiaries you have named in your Will.
The Executor you name in your Will is under a legal obligation to ensure that your wishes in relation to your Estate are carried out in accordance with your Will. If your Executor does not fulfil this legal obligation, they may be liable to any beneficiaries of your Estate that have suffered as a result of this failure.
In the event that you die without a Will, then your assets will be distributed in accordance with a set formula called the “Intestacy Laws” where your parents, uncles, aunts, partners, children, grandchildren, nieces and nephews may all be entitled to receive a part of your Estate. Generally, the New South Wales Trustee and Guardian will be appointed to act as your Executor and they have the same legal obligation to distribute your Estate, to the correct beneficiaries identified under the Intestacy Laws.
So what happens if there is uncertainty in relation to locating or identifying your beneficiaries?
What is a “Benjamin Order”?
This was the issue faced by the Court in the original proceedings that gave rise to the term “Benjamin Order” in 1902. In this case the Court decreed that when an Executor is faced with uncertainty on who should be a beneficiary of an Estate, that Executor has the right to seek a declaration from the Court on who should benefit. Once this declaration is made the Executor is no longer liable if they distribute the Estate to who they believe are the correct beneficiaries, even if more entitled beneficiaries are subsequently discovered.
A Benjamin Order is still available to Executors today, over a hundred years later. For instance, in the 2015 New South Wales Supreme Court decision of NSW Trustee & Guardian; In the Estate of Rex the NSW Trustee & Guardian applied to the Court for a Benjamin Order in the Estate of the late Karl Rex.
Karl was born in Germany in 1939 to Martha and Emil. Karl was the oldest of three siblings with a younger brother Willi and a younger sister Olga. Emil was killed during the Second World War and his younger sister was killed in a traffic accident. Karl immigrated to Australia in 1962 and eventually settled in Sydney. As far as could be ascertained Karl never married or had children.
Karl died without a Will and his Estate was required to be distributed in accordance with the Intestacy Laws. The Executor undertook extensive searches to determine Karl’s surviving relatives. These searches were in Australia as well as in Germany. At the end of these searches Karl’s Executor could find no surviving relative other than Karl’s brother Willi. The Court found that to require the Executor to undertake further searches for beneficiaries would be to engage in an unnecessarily expensive and time consuming exercise with no reasonable prospects of finding out any further information.
The Court was satisfied that the practical probabilities were that Karl’s only surviving relative was Willi and that the Executor could administer the Estate accordingly without any fear of breaching their legal obligations to any other unknown or undiscovered beneficiaries.
If you need advice on being an Executor named in a Will, you need to seek legal advice from an Expert Wills & Estates Lawyer. We specialise in Wills & Estate Law only and pride ourselves on our open and honest communication with clients.
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