Re Benjamin
Where a beneficiary has disappeared and his survival cannot be proved, the court may authorise the personal representatives to distribute the estate on the footing that he predeceased the testator, without extinguishing his rights.
Facts
Under the testator's will, his estate was to be divided among his children who survived him. One of his sons had disappeared some months before the testator's death, and had not been heard of since. It was not known whether he had survived the testator. The trustees applied to the court for directions about how to distribute the estate.
Legal principle
Joyce J made an order authorising the trustees to distribute the estate on the footing that the missing son had predeceased the testator. The order protected the trustees from liability if the son later reappeared, but did not extinguish his rights, so that he could still bring a claim against the beneficiaries who had received his share. Such orders, known as Benjamin orders, are still commonly used where a beneficiary cannot be traced, often supported by missing beneficiary insurance.
Related cases on intestacy, personal representatives and administration of estates
- Re Diplock [1948] Ch 465
- Hartshorne v Gardner [2008] EWHC B3 (Ch)
- Ministry of Health v Simpson [1951] AC 251
- Official Solicitor v Yemoh [2010] EWHC 3727 (Ch)
- R (Ghai) v Newcastle City Council [2010] EWCA Civ 59
- Strong v Bird (1874) LR 18 Eq 315
- Williams v Williams (1882) 20 Ch D 659
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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.
