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Identifying Beneficiaries in a Will - "The Benjamin Order"


In 1902 an executor was unable to find or identify a beneficiary of an estate. This case gave rise to the term “Benjamin Order”. 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're an Executor named in a Will and you're having difficulties locating a beneficiary, Get In Touch with one of our lawyers who can advise you on how to proceed. Your first consultation is free of charge.

Identifying Beneficiaries in a Will - "The Benjamin Order"

In 1902 an executor was unable to find or identify a beneficiary of an estate. This case gave rise to the term “Benjamin Order”. 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.

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Revoking a Grant of Probate - Testamentary Capacity

In the Supreme Court of New South Wales case concerning In Estate Sue [2016], an application to revoke a Grant in Common Form was submitted. The grounds for the application centred on whether the Will that had been Granted Probate was invalid, because of a lack of testamentary capacity of the deceased at the time they made the Will. Testamentary capacity refers to the person making their Will, understanding the nature and effect of making their Will and that they were of sound mind at the time of making their Will.

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