When a testator leaves a bequest to his or her chosen beneficiaries, they assume that the executor of the estate will have no difficulty in locating these beneficiaries. The executor is faced with the task of distributing the assets of the deceased estate, but this can be difficult when the executor cannot locate all of the beneficiaries. A testator will often execute a will many years (if not decades) before they pass away. In the intervening period, a beneficiary may immigrate to another state or another country, lose contact with the testator altogether, and even change their name. This article outlines the options for an executor when there are missing beneficiaries.
An executor has several options when he or she is unable to locate beneficiaries. The choice will depend on the facts of the particular case, the wording of the will, the circumstances of the other beneficiaries, and the likelihood of eventually finding the missing beneficiaries.
One option is for the executor to sequester the bequest to the missing beneficiary in a reserve fund. The executor can give the reserve funds to the missing beneficiary if they are located within the jurisdiction’s limitation period. For instance, in Queensland, a beneficiary has 12 years from the death of the testator to claim their inheritance under a will. The executor’s obligation to the estate would continue for that period of time, although the duties would be limited to preserving the reserved share of the estate.
Alternatively, an executor can pay the outstanding bequest to the other beneficiaries. The executor would do so on the understanding that if the missing beneficiary emerges before the end of the limitation period, then the recipients will repay the bequest. An executor can only do this with the approval of all of the beneficiaries of the estate (other than, of course, the missing beneficiary). This is not the most desirable approach, because the beneficiaries may be in an invidious position if the missing beneficiary does later emerge and the other beneficiaries have little resources.
Some executors choose to apply for a “Benjamin Order” from the relevant Supreme Court. This provision derives from the Chancery Court decision in In re Benjamin; Neville v Benjamin . In this case, one of the testator’s children disappeared and after extensive enquiries and advertisement, the estate administrator had still found no trace of the son. The judge, in this case, held that the son should be presumed deceased and the administrator should distribute the estate upon that assumption. In this way, the court can give permission for a distribution of the estate based on the practical probabilities of the case. In this circumstance, if someone later locates the missing beneficiary, the executor is protected from personal liability, but the other beneficiaries may still be liable to repay the missing beneficiary’s entitlement. When an executor pursues this option, the estate bears not only the cost of making extensive enquiries into the whereabouts of the missing beneficiary but also the legal costs of the court application.
The Supreme Court of NSW recently considered whether to make a Benjamin Order in Application by Walsh & Anon (Estate of Robert Charles Walsh (Deceased)) . In this case, the executors were seeking permission to distribute the residuary estate to the other beneficiaries because one beneficiary had been missing for twenty years and was presumed dead. The court agreed that the executors had pursued reasonable investigation into the whereabouts of the beneficiary and that there was sufficient uncertainly as to whether the beneficiary was deceased to warrant a Benjamin Order.
Missing Beneficiary Insurance
Alternatively, an executor can purchase missing beneficiary indemnity insurance to cover a modest bequest. This allows the executor to finalise the deceased estate administration with the proviso that if the missing beneficiary is later located, the insurance will pay out the entitlement. The disadvantage inherent in this approach is that the estate must pay for the cost of purchasing the insurance.
Guidance For Testators
A testator should make it as easy as possible for the executor of the estate to locate the beneficiaries of the will. The testator should confirm the contact details of beneficiaries when they regularly review and update their will. It may also be a practical safeguard to include a beneficiary profile with the will that outlines the beneficiary’s full name, addresses, emails and phone numbers, employer contact details and next of kin contact details. It may also be appropriate for the testator to leave details of the beneficiary’s social media accounts, such as Facebook and LinkedIn so that the executor can pursue other methods of contacting missing beneficiaries.
If you are an executor who is having trouble locating a missing beneficiary, call 1300 038 223 for help from Armstrong Legal to assess your options. The contested wills team can also help you apply for a Benjamin Order to wrap up the deceased estate administration. Please get in touch for confidential and experienced advice and representation.