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With the return of overseas travel and the ever-developing ability for people to live and work all over the World, locating the beneficiaries of a Will after the death is becoming significantly more difficult.

This issue has furthered the need to ensure you have a Will that is properly drafted by an experienced Solicitor, who can do more than just prepare your Will, but also ensure that there are enough details about your affairs and the beneficiaries of your Will to ensure that your executor can make sure your chosen beneficiary gets the benefit you wish to leave for them.

So what would happen in the event that a beneficiary can’t be found? There are a few different options available to your Executor. In the worst-case scenario, the executor may apply for a Benjamin Order from the Supreme Court of New South Wales.

A Benjamin order was first established by the Chancery Court decision in In re Benjamin; Neville v Benjamin [1902] in which the court decided that it could order the redistribution of an estate when a missing beneficiary is presumed dead.

A Benjamin Order was recently made by the court in the matter of Application of Roberts [2023] NSWSC. The beneficiaries were the deceased’s five children – one of the five children had last been seen on a hitchhiking trip with his fiancé at Byron Bay in 1979.

After considering all the evidence available, the Court ultimately determined to re-distribute the estate amongst the remaining beneficiaries – but only after a long and expensive hearing at the expense of the Estate!  A simpler and more cost effective path would be to draft a new Will or Codicil updating the existing Will to take into account the change in circumstance.

Contact us today so we can make sure your estate will be divided the way you wish.