Benjamin Order to Distribute an Intestate Estate

In NSW Trustee and Guardian; re estate of Cooper [2018] NSWSC 1020, the NSW Trustee & Guardian (TAG) applied to the Court, as administrator of the estate, for orders permitting the distribution of the deceased estate to the Crown. The order sought is known as a Benjamin order. The name of the order is derived from an old English case of the same name where the executor could not locate a beneficiary. Such an order applies where there is uncertainty about a factual matter relevant to the distribution of the estate.

In Cooper’s case, Mr Henry Cooper died in 1996 with an estate worth approximately $47,000. He died without leaving a will. He did not have a spouse or children. The order of distribution on intestacy were his parents, siblings, grandparents, aunts and uncles and then cousins. There were several inconsistencies as to the dates on his birth certificate and death certificate and his own parents’ death certificates and other inconsistencies concerning the number and names of his siblings.

The Court held that the possibility of a person entitled to the deceased’s estate surviving him was so remote that it could be disregarded. The Court granted the orders sought by TAG.

A Benjamin order can include a declaration by the court that a beneficiary, predeceased the deceased or that the applicant is at liberty to distribute the estate because it can’t locate the whereabouts of a beneficiary or any other declaration as to who should benefit from the estate. The personal representative of the estate is then excused from any personal liability in the event a beneficiary comes forward later to claim that they have not distributed the estate correctly because the court has made such an order.
The personal representative is required to make all necessary and proper investigations as to who may be entitled to the estate and their whereabouts before the Court will be minded to make such an order.


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