What is a Benjamin Order?

A Benjamin Order enables Personal Representatives to distribute an estate upon specific events occurring or failing to occur. Such Orders are generally used when Personal Representatives encounter difficulties in tracing Beneficiaries or determining whether they are alive. Such Orders, therefore, provide protection for Personal Representatives in the event that the missing beneficiary reappears following the distribution of the estate.

In the case of Re Benjamin [1902] 1 Ch 723, a son of the Testator, P.D. Benjamin was a Beneficiary of the estate. Unfortunately, he disappeared and was never heard from again, leaving the trustees of the estate in a difficult position as to whether the estate should be administered or not. The Court held:

“In the absence of any evidence that the said P.D Benjamin survived the testator, let the trustees of the testator’s Will be at liberty to divide the share of the testator’s estate devised and bequeathed in favour of the said P.D. Benjamin, his wife and children, upon the footing that P. D Benjamin was unmarried and did not survive the testator”.

Similarly, in Re Green’s Will Trusts, Fitzgerald-Hart v A-G [1983] 3 All ER 455, a Beneficiary was presumed deceased before his mother due to his disappearance during a wartime bombing raid, this was confirmed by the Air Ministry in 1943. Despite this, the mother, convinced of that her son had somehow remained alive, included him in provisions in her 1972 Will and subsequent Codicil in 1973.

Both of these provided that the son has until 2020 to claim his share of the inheritance. The testator died in 1976, the Personal Representatives sought a Benjamin Order from the Court, seeking permission to distribute the estate given that, based on the available information, the beneficiary was likely to have died in 1943. The Court ruled in favour of the Personal Representatives, allowing distribution under the presumption that the beneficiary had in fact predecease the testator.

In considering whether an application for a Benjamin Order is appropriate, the Personal Representatives must take all necessary steps to locate the beneficiaries and must provide evidence of the steps they have taken to locate the missing beneficiaries prior to commencing proceedings.

Examples of the steps that the Personal Representatives should take are as follows:

• Attending the beneficiary’s last known residential address or their place of business;
• Inquiring regarding relevant records such as marriage, death certificates or DWP;
• Making contact with the Beneficiary’s friends, family or employer;

The Personal Representatives may also consider instructing experts who specialise in locating missing beneficiaries, to assist with their inquiries.

Ultimately, to distribute estate assets without approval from the Court can expose the Personal Representatives to potential claims. One must bear in mind that the Personal Representatives have personal liability against such potential claims if for example, the missing beneficiary was to return, and claim their share of inheritance. In addition, Benjamin Orders provide additional protection to the remaining beneficiaries, enabling them to receive their share of the inheritance without the unnecessary delays.