Practical Guide for Estate Trustees when Dealing with a Missing Beneficiary – Part 1 of 2

After obtaining a Certificate of Appointment (formerly known as a Grant of Probate or a Grant of Administration, if applicable) issued by the Superior Court of Justice, the administration of an estate begins, and it usually involves the following steps:

1. Identify (and locate contact information of) the beneficiaries;
2. Gather the assets; and
3. Distribute what each person is owed.

But what happens when one of the named beneficiaries cannot be found? A trustee who pays out the estate and later discovers that the “missing” beneficiary was alive all along can be held personally liable for the mistake. Yet holding the estate open indefinitely, waiting for someone who may never appear, is equally unfair to the beneficiaries who are ready to receive their inheritance.

The Origin of a Benjamin Order

Ontario courts resolve this dilemma with a tool known as a “Benjamin Order.” Named after the century-old English case in re Benjamin; Neville v. Benjamin, [1902] 1 Ch. 723, the order allows an estate trustee to distribute an estate as if a missing beneficiary had died before the person who left the Will, protecting the trustee from personal liability while still leaving the door open for the lost beneficiary to claim any undistributed property if they later come forward.

The doctrine takes its name from in re Benjamin; Neville v. Benjamin, [1902] 1 Ch. 723, a decision of Joyce J. in the Chancery Division. David Benjamin's Will left his residuary estate to be divided among his children living at his death, but one son, Philip D. Benjamin, had vanished in September 1892, last seen boarding a train after being summoned back to London by his employer, whom he had defrauded presumably, and was never heard from again despite searching inquiries and advertisements published throughout the English colonies and beyond.

When the testator died in June 1893, the trustees could not tell whether Philip had died before or after his father, which determined whether his share (some £30,000) formed part of his estate or fell back into the residue. The court held that Philip must be presumed dead, and, critically, that the burden lay on those claiming through him to prove he had survived the testator, a burden they could not discharge given his obvious motive to disappear.

Rather than declaring the date of death, Joyce J. crafted a narrow order giving the trustees liberty to distribute the estate on the footing that Philip had predeceased the testator, while deliberately preserving any claim his representatives might later bring if fresh evidence emerged. That carefully limited form of relief, permitting distribution on an assumed state of facts without foreclosing a missing beneficiary's rights, is what endures today as the "Benjamin Order."

Ontario’s Application

Two recent decisions of the Ontario Superior Court of Justice: (i) Steele v. Smith¹ and (ii) Durand v. Hamilton², offer a practical illustration of when a court will grant such an order and when it will refuse. In Steele, the trustee succeeded, whereas in Durand, the request was turned down as premature. Read side by side, they map out exactly what a diligent search looks like.

What A Benjamin Order Does & Does Not

It is important to understand what the order actually accomplishes. A Benjamin Order does not declare that the missing person is dead [For more details about a Declaration of Death, check: Declaration of Death: Or how a Court can declare someone is dead]. Rather, it protects the trustee, which permits the estate to be distributed on the assumption that the beneficiary did not survive, so that if the trustee later turns out to be wrong, they cannot be sued for breach of trust and therefore be held personally liable.

The trade-off falls on the missing beneficiary. If they resurface after the estate has already been paid out and spent, they generally cannot recover property that has been dissipated or sold to a good-faith buyer. Their only remaining recourse is usually a personal claim against whoever received their share. The practical advantage of the order, then, is that it lets an estate be wound up promptly while still preserving the lost beneficiary’s right to claim anything that remains undistributed.

Because the order can have real consequences for an absent person who has no voice in the proceeding, courts do not grant it lightly.

The central question in every case is the same: Has the estate trustee done enough to find the missing beneficiary?

The Test the Court Applies

Ontario courts (and other Canadian courts) assess the adequacy of a trustee’s search by weighing the totality of the circumstances. The following practical questions guide the analysis³:

1. Why is the question being asked? Is there real evidence of a missing beneficiary, or does the issue arise simply from the circumstances?
2. How much time has passed since the death of the person who made the Will?
3. What specific steps have been taken to locate the beneficiary, and over what period?
4. Who conducted the search, and were they qualified to do so?
5. Did the search properly account for where the beneficiary might be located?
6. Would further inquiry, or simply waiting, realistically produce results, and at what cost and delay?
7. How much money is at stake?

No single factor is decisive. A court balances the likelihood that further searching will succeed against the cost and delay of continuing. The two cases below show how that balance plays out in practice.

The Successful Application: Steele v. Smith

In Steele v. Smith, the estate trustee, who is a long-time friend of the deceased, needed to distribute the residue of an estate among several beneficiaries.⁴ One of them, a brother of the deceased born in 1925, could not be located despite considerable effort.⁵ The trustee asked the court to treat that brother as having predeceased the testator so the estate could be finalized.⁶

Why the Court Granted the Order

The judge was satisfied that the trustee had genuinely exhausted the available avenues of inquiry. The search included:

1. Extensive online searches to trace the missing brother;⁷
2. Direct contact with multiple family members, including pursuing the missing man’s son and even the son’s half-brother for information;⁸
3. Hiring a professional U.K. tracing company: an independent, qualified investigator to conduct the search;⁹
4. An explanation for the disappearance: the person who had once threatened the missing beneficiary had died long ago, so there was no longer any rational reason for him to stay hidden;¹⁰ and
5. The passage of roughly 18 months since the death, with each realistic lead followed to a dead end. ¹¹

Taken together, these efforts convinced the court that paying the funds into court to wait for a claim would serve no useful purpose.¹² It was highly unlikely the money would ever be claimed.¹³ The order was granted, and the missing brother’s share was divided among the remaining beneficiaries.

The Unsuccessful Application: Durand v. Hamilton

In Durand v. Hamilton, the estate trustee sought a Benjamin Order to distribute an estate as if a beneficiary, the elderly sister of the deceased, who would have been in her mid-nineties and was believed to have lived in Hungary, had predeceased the testator.¹⁴ Her share amounted to a substantial sum, roughly $75,000 to $80,000.¹⁵

Why the Court Refused (for Now)

The court declined to grant the order, finding the request premature.¹⁶ The trustee’s efforts fell short in several respects:

1. A language barrier left unaddressed: he did not speak Hungarian and did not know whether the beneficiary had any issues;¹⁷
2. Only “limited information”: the trustee candidly admitted he had not adequately informed himself about the beneficiary or whether she had children;¹⁸
3. Online search efforts not enough: online and social media searches were conducted with unsuccessful results;¹⁹ and
4. Obvious avenues left unexplored: several straightforward and available steps had simply not been taken.²⁰

Importantly, the court did not close the door. It adjourned the request (i.e. adjourned sine die) and set out precisely what it wanted to see before it would reconsider, effectively giving the trustee a roadmap.²¹ The judge expected inquiries of any living relatives of the deceased, inquiries of the lawyers who drafted the Wills, identification of which Hungarian newspapers or media publish notices to unknown beneficiaries, and the publication of appropriate notices in those outlets.²²

The Lesson: What Makes a Search “Enough”

The contrast between the two cases is insightful and instructive. The difference was not the amount of money, the age of the missing person, or even how long they had been gone. The difference was the quality, independence, and thoroughness of the trustee’s own search.

For anyone administering an estate with a beneficiary who cannot be found, the following steps, drawn from what the courts praised in Steele and expressly required in Durand, strengthen an application for a Benjamin Order:

1. Inquire of living relatives of the deceased who might have information about the missing beneficiary;
2. Contact the lawyers who drafted the Will, who may hold records or contact details;
3. Publish formal notices in the newspapers or media of the jurisdiction where the beneficiary may live, using the outlets that customarily carry notices to unknown beneficiaries;
4. Engage a professional tracing firm – the independent, qualified search that proved decisive in Steele;
5. Search across every jurisdiction where the beneficiary might be found, rather than assuming a single location;
6. Document a sustained effort over a reasonable period, rather than relying on a single search or on efforts made long ago by someone else; and
7. Show, where possible, that any reason for the disappearance no longer exists, so that the person has no rational motive to remain hidden.

Practical Takeaway

A Benjamin Order is a valuable tool that allows an estate to be settled and beneficiaries to be paid without leaving the trustee exposed to personal liability. But it is not a shortcut. Courts expect a trustee to become genuinely informed about the missing person and to pursue every reasonable avenue, ideally with the help of independent professionals, before asking to treat that person as deceased.

As Durand makes clear, a court that refuses the order is often not saying “no” so much as “not yet.” The path forward is usually to do the work the court has identified and return with a fuller record. And as Steele shows, a trustee who can demonstrate a thorough, well-documented, and genuinely exhausted search will generally be granted the relief needed to bring the estate to a close.

The next article will explore an alternative option for estate trustees to consider when dealing with a missing beneficiary, without engaging a Benjamin Order.

 

The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.