What is a “Benjamin Order”?

Date: Oct 04, 2013
Document Type: Article

An issue sometimes facing a plaintiff is establishing the identity or whereabouts of persons to whom the deceased’s estate or part of the estate should be distributed and the inability, despite adducing all available evidence, of ruling out the possibility that a person exists or that person had descendants who might still be alive.

Unless the Court considers the available evidence and orders that the plaintiff be at liberty to distribute the estate, the plaintiff cannot finalize administration of the estate.

In a case where there is uncertainty about a factual matter relevant to the distribution of the deceased’s estate, the Court may, in certain circumstances, make an order that the executor or the administrator is at liberty to distribute on some particular factual basis for example that a missing beneficiary predeceased the deceased with or without issue. It is this type of order that is termed a “Benjamin Order”. The name derives from the case of Re: Benjamin; Neville v Benjamin [1902] 1 Ch 723.

An example of orders usually sought are:

1.     a declaration that [name]  predeceased the deceased;

2.     in the alternative, an order that the plaintiff be at liberty to distribute the estate;

3.     in the alternative, the plaintiff seek the opinion and advice and direction of the Court in respect of the facts set out in the affidavit of [plaintiff]; and

4.     an order that the plaintiff’s costs be paid out of the estate on an indemnity basis.

The plaintiff is required to carry out all necessary and proper investigations to determine the persons who are or may be entitled on intestacy to the estate.

In a recent case decided in the Supreme Court of NSW at Sydney, the Court ordered the estate distributed but said that because “...one can never be sure that the deceased did not have any children...” the whole of the estate could be distributed without prejudice to the rights of any child or children of the deceased or those claiming through a child or children of the deceased to trace his, her or their share into the hands of the recipients if it were ever established that they had survived the deceased.

The above case is an example of the practical approach the Court brings to the distribution of estates.

Please call us on 8268 4000 if you wish to discuss ANY matter concerning wills or estates.

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