“People disappear – maybe as a result of a tragedy, maybe for other reasons, or, sometimes, for reasons unknown. It may be impossible, at a particular time, to say, with certainty, in relation to a particular person, that she or he, is, in fact, no longer alive.”[1]
This remark from the Supreme Court in NSW captures a tragic reality. People do indeed disappear, leaving heartache and uncertainty in their wake. This uncertainty can extend to estate administration and result in the potential for an estate dispute.
So what does the law have to say if a beneficiary of an estate disappears?
Estate litigation examples – Missing beneficiaries
Two recent cases handed down by the Court this year confirm the law’s position with respect to missing beneficiaries. They are Application of Roberts (“the Roberts case”)[2] and Application of Jordan; Estate of Michael Galanis (aka Michael Galanakis) (“the Jordan case”).[3]
Both the Roberts and Jordan cases involved applications being made to the Court by the administrators of the estates. The administrators were granted Letters of Administration after both deceased persons died intestate – that is, without leaving a Will. These applications sought that the Court release the administrators from their undertakings to distribute a share of the estate to beneficiaries who had been missing for decades.
Circumstances in the Roberts and Jordan cases
In the Roberts case, per section 127(1) Succession Act 2006 (NSW) (“the Act”), the deceased’s five children were entitled to equal shares of their mother’s estate. One of these children was Mr Fox, who had not been seen nor heard from in over 44 years. He and his fiancée had disappeared on a trip to northern New South Wales to inspect a property they were considering purchasing. After a lengthy inquest, two decades later, the Deputy State Coroner determined that while he could not say for certain, he was satisfied the couple were deceased, and issued death certificates accordingly.
In the Jordan case, the deceased’s sole surviving sibling was entitled to half of his estate, and his two nephews to one quarter, per section 129 of the Act. One of these nephews was Mr Galanakis, who had not been seen nor heard from in 38 years. He had disappeared during a trip to Greece with his father. He was last seen leaving his hotel for recreational purposes. Similarly, he had no reason to disappear. Two decades later, in an extensive judgment, a Greek Court declared Mr Galanakis was, in all likelihood, deceased.
The Court’s Decision – Benjamin Orders
In both cases, the Court affirmed that in situations of missing beneficiaries, the Court may make an order that the executor or administrator is at liberty to distribute the estate on a particular factual basis.
This type of order has been coined a ‘Benjamin Order’, deriving from the 1902 English case of Re Benjamin.[4] A Benjamin Order is likely to be issued where there is “practical impossibility” of proving a missing beneficiary is in fact alive, and every reasonable step has been taken to trace the person.
In such circumstances, in the words of Justice Hallen of the NSW Supreme Court, “the time has come to end the administration of the deceased’s estate.”[5] The effect of a Benjamin Order is to protect an executor or administrator and permit distribution “without having to wait until what might be unprovable can be proved.”[6]
In both of these cases, the Court was satisfied that all reasonable steps had been taken and Benjamin Orders were made to allow the administrators to distribute the estates on the presumption the missing beneficiaries were deceased.
How We Can Help
Estate administration can be an emotional and challenging exercise in the best of situations, let alone when faced with missing beneficiaries, particularly when they result in estate contests and challenging Wills. Our estate lawyer experts in the Private Wealth Law team are here to assist you.
[1] Guo v Gao [2021] NSWSC 1059.
[2] [2023] NSWSC 342.
[3] [2023] NSWSC 221.
[4] [1902] 1 Ch 723.
[5] The Roberts case [33]; The Jordan case [44].
[6] The Jordan case at [29] quoting from Yu Yee Luen v So Yu Lung [2022] HKCFI 2403 at [6] (Deputy High Court Judge Jonathan Chang SC).
If you have any questions or concerns please contact our Private Wealth Director Ashleigh Blewitt on 02 6188 3600