Missing Beneficiaries (NSW)

In the ordinary course of events, an executor of an estate personally knows or can easily locate the beneficiaries of a will. However, if a testator has not updated their will in years, one or more beneficiaries may have moved or changed their name. In that case, the executor might have difficulty locating a beneficiary and face delays in finalising the estate. This article explains an executor’s options if they struggle to find a missing beneficiary in New South Wales.

Executor’s Duty To Missing Beneficiaries

An executor is legally responsible for transferring the estate assets to those who are entitled to them under the will. Therefore, one of the executor’s first tasks is to track down the will’s beneficiaries. It is not sufficient for an executor to make basic enquiries and then declare that they cannot locate a beneficiary. The executor has a duty to take all reasonable steps to find the missing beneficiary.

The executor should start by talking to the deceased’s family and close friends to see if they are acquainted with the missing beneficiary or know the connection between the beneficiary and the deceased. If this does not help locate the beneficiary, the next step is to search local records and advertise locally and online for anyone familiar with the beneficiary. The executor should consider hiring an investigator to track down the missing beneficiary when the bequest is sizable.

Of course, the executor must balance their duty to properly search for the missing beneficiary with their commitment not to waste estate funds. The executor must decide which steps are appropriate given the circumstances, the wording of the will, and the likelihood that the beneficiary will eventually be found.

Executor Options here there are missing beneficiaries

An executor has several options when they cannot locate a beneficiary through reasonable endeavours. An executor may choose to reserve the missing beneficiary’s bequest in a fund. In that case, if the beneficiary is eventually located, then the executor can pass the bequest directly to the beneficiary. The drawback to this approach is that the executor’s obligation to the estate continues for years (although in a limited capacity). Alternatively, the executor can pass the outstanding bequest to the other beneficiaries of the will. In return, the beneficiaries must all agree that they will pay back the bequest if the missing beneficiary is later located. This may also be an inadvisable approach, as the beneficiaries may have difficulty repaying the missing beneficiary in the future.

An executor may decide that the safest course of action is beneficiary indemnity insurance. The executor can finalise the estate administration by distributing the outstanding bequest to the other beneficiaries. In this circumstance, the insurance company pays out the entitlement if the beneficiary appears in the future. The drawback to this approach is that the estate must purchase the insurance cover.

Benjamin Orders

In some cases, it is appropriate for the executor to apply for a Benjamin Order from the Supreme Court of New South Wales. The Chancery Court decision in In re Benjamin; Neville v Benjamin [1902] established that a court can order the redistribution of a deceased estate when a missing beneficiary is presumed dead. In this case, the estate administrator found no trace of one of the testator’s children, despite extensive searches. The court gave the administrator permission to distribute the beneficiary’s share to the other children. Under a Benjamin Order, the executor is not personally liable if the missing beneficiary later emerges, although the other beneficiaries may have to repay the bequest. The estate bears the (sometimes considerable) costs associated with a Benjamin Order, including exhaustive enquiries into the missing beneficiary’s whereabouts, court application costs and legal fees.

In the recent case of Application by Walsh & Anon (Estate of Robert Charles Walsh (Deceased)) [2020], the executor sought permission to distribute a residuary estate on the basis that a beneficiary had been missing for several decades and was presumed dead. The Supreme Court of NSW found that the executor had acted properly in making the application to finalise the estate. The court ordered the Benjamin Order on the basis that the executor had made reasonable enquiries into the beneficiary’s whereabouts, and there was a high degree of probability that the beneficiary was deceased.

Advice For Testators

It is, of course, preferable for an executor to locate all the beneficiaries of the will. In order to ensure this outcome, the testator should do everything they can to ease the process for their estate administrator. One of the key things that a testator can do is regularly review and update their will, confirming that the beneficiaries’ contact details are current and correct. Some testators go even further and leave beneficiary contact details in a Letter of Wishes. This information can include the beneficiary’s addresses, phone numbers, social media, email addresses, employer and next of kin contact details.

You should contact Go To Court Lawyers if you have any questions about missing beneficiaries. Our team can advise you on your responsibility as an executor and suggest the best course of action given your particular circumstances.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Armstrong Legal in 2020.
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