Missing beneficiaries - what can personal representatives do?

A breach of duty may arise if personal representatives (“PRs”) distribute an estate without taking the existence of a beneficiary of whom they are aware into account, whether that beneficiary is specifically named in the deceased’s will or a member of a class of beneficiaries who may be entitled under the will or on an intestacy.

Although the placement of a notice in compliance with Section 27 of the Trustee Act 1925 protects PRs against claims of unknown beneficiaries entitled under the will or on intestacy, it does not provide protection where the PRs know of a beneficiary but not their whereabouts and omit them from benefitting on distribution of the estate. What then should PRs do?

 

Tracing known but missing beneficiaries

If a known beneficiary is missing, the PRs should make all reasonable enquiries to establish the beneficiary’s whereabouts. Some examples of such steps which the PRs should take include:

• Instructing title research agents or private investigators to establish whether the beneficiary is still alive;
• Ascertaining what evidence is available regarding the missing beneficiary’s last known whereabouts or actions.  This may include making a personal attendance at the beneficiary’s last known address and/or place of business and enquiries of their known friends, family or business associates;
• Carrying out formal searches regarding relevant records such as marriage or death certificates;
• Placing advertisements seeking information in local newspapers where the missing beneficiary was last known to reside; and
• Making enquiries of the Department for Work and Pensions.

 

What if the known beneficiary still cannot be found?

If the missing beneficiary still cannot be found, rather than postponing the distribution of all or part of the estate, the PRs may consider taking one of the following steps:

• Applying to the court for directions;
• Applying to the court for permission to distribute the estate;
• Press on and distribute the estate without seeking the court’s permission;
• Apply for missing beneficiary insurance prior to distributing the estate without seeking the court’s permission; or
• Pay the money into court.

Often, the PRs will wish to seek an order which provides as much certainty as possible as regards final administration and distribution of the estate. In such circumstances, they would likely be best advised to apply to the court for permission to distribute the estate. Such an application is often known as an application for a Benjamin order, so called after the case of Re: Benjamin [1902].

 

What is a Benjamin order?

A Benjamin order is an order that the PRs may distribute the estate on the basis events have or have not happened. A Benjamin order permits PRs to distribute the estate on the basis that the missing beneficiary is no longer alive. It affords full protection to the PRs if the missing beneficiary is later proved to have survived the deceased.

 

Applying for a Benjamin order

Any application for a Benjamin order by the PRs must be supported by evidence showing what steps have been taken by the PRs before the issue of proceedings to establish whether the missing beneficiary is still alive and/or any evidence they have regarding his whereabouts or last known actions.

 

What will the court do?

If the court is satisfied that the PRs have done all they can to trace the missing beneficiary, it may make an order giving them permission to distribute the estate in accordance with the terms of the order. This usually involves authorising distribution of the estate on the basis that the missing beneficiary has pre-deceased the testator, leaving no issue.

Before making such an order, the court may, however, also consider giving further directions including, for example, directing the PRs to publish further advertisements in newspapers or perhaps, in today’s more modern technology driven world, on social media platforms.

 

Examples of Benjamin orders

In the Benjamin case the testator’s son, who was a beneficiary of the testator’s estate, had disappeared and could not be traced. Nor was it known whether he was still alive or not. This left the trustees in a difficult position as to whether the estate could be administered or not. They made an application to the court seeking directions. Having considered the application and reviewed the evidence filed in support, the court determined that, in the absence of any evidence to confirm that the son had survived the testator, the trustees should be granted permission to divide the estate (which had been bequeathed to the son, his wife and children) on the basis that the son was unmarried and had not survived the testator.

Similarly, in Re Green’s Wills Trusts [1983] a mother, convinced that her son was still alive despite confirmation from the Air Ministry in 1943 that he was presumed deceased during a wartime bombing raid, included him in the provisions of her will in 1972 and subsequent codicil the following year.

By those testamentary instruments, the son had until 2020 to claim his share of the inheritance. The testator died in 1976 and the PRs of her estate made an application for a Benjamin order, seeking permission to distribute the estate on the basis that from the information available it was very likely that the son had died in 1943. The court ruled in favour of the PRs, permitting them to distribute the estate under the presumption that the son had in fact pre-deceased his mother.

 

What if the missing beneficiary later re-appears?

If a Benjamin order has been granted and provided that the PRs have acted in accordance with the terms thereof, if the missing beneficiary is later proved to have survived the deceased, the PRs will be fully protected. The now no longer missing beneficiary may, however, pursue the recipients of the beneficiary’s share of the estate for its recovery.

 

We can help

If you are a PR who may have grounds to make an application to court in respect of a missing beneficiary or are a now found missing beneficiary and wish to bring a claim to recover your share of the testator’s inheritance and wish to receive advice in relation to your position, please contact our team on [email protected]​​​​​​