A “Benjamin Order” is a court order that permits an estate trustee to distribute an estate as though a missing beneficiary predeceased the testator, even where that cannot be confirmed with certainty. It is a narrow and exceptional remedy, granted only where the estate trustee has exhausted all reasonable options for locating the missing beneficiary. This article explains where the Benjamin Order comes from, how Ontario courts decide whether to grant one, and what estate trustees should do if they find themselves unable to locate a beneficiary.
Why a Missing Beneficiary Creates a Problem
An estate trustee’s fiduciary duty requires them to identify all beneficiaries who may be entitled to share in an estate and to distribute the estate’s assets accordingly. If a trustee distributes an estate without properly accounting for a beneficiary – even unknowingly – that trustee can be held personally liable to the missing beneficiary if they later come forward.
Faced with a beneficiary who cannot be located, an estate trustee generally has a few options: continue searching indefinitely, pay the missing beneficiary’s share into court and distribute the balance, or apply to the court for direction. Where all reasonable options for locating the beneficiary have been exhausted, a fourth option becomes available – applying for a Benjamin Order.
What is a Benjamin Order?
The Order takes its name from the 1902 English decision in Neville v Benjamin, in which a testator’s twelve children were known, but a thirteenth child could not be located after having disappeared amid suspicion of fraud. The court permitted the estate to be distributed on the basis that the missing child was presumed to have predeceased the testator, while leaving open the possibility that the missing beneficiary, if he ever reappeared, could pursue a claim against those who had received his share.
That principle has since been adopted by Canadian courts. In substance, a Benjamin Order allows an estate trustee to distribute an estate as though a missing beneficiary died before the testator, without waiting indefinitely to confirm whether that is actually true. Crucially, the order protects the estate trustee from liability for having distributed the estate on that basis – it does not extinguish the missing beneficiary’s underlying claim. If that person later resurfaces, their recourse is against the beneficiaries who received the distributed assets, not against the estate trustee personally.
Because a Benjamin Order effectively permits a court to proceed on presumption rather than proof, Ontario courts have consistently treated it as an exceptional remedy – one that will only be granted where the estate trustee has exhausted reasonable efforts to locate the missing person.
What Ontario Courts Look For
Ontario courts assess Benjamin Order applications on the sufficiency of the estate trustee’s search efforts, not on any fixed formula. The leading framework, drawn from the Saskatchewan decision in Wieckoski Estate[1] and adopted in the Ontario case Kapousouzian Estate v Spiak[2], asks questions such as:
- How much time has passed since the testator’s death?
- What specific steps have been taken to locate the missing beneficiary, and over what period of time?
- Who conducted the search, and what were their qualifications to do so?
- Did the inquiries meaningfully consider where the missing person might realistically be found?
- Is there a reasonable likelihood that further inquiries would turn up additional information?
- What is the value of the share at stake?
In Steele v Smith[3], the Ontario Superior Court granted a Benjamin Order roughly eighteen months after the testator’s death, where the estate trustee had conducted online searches, contacted surviving family members, and retained a UK-based tracing company to search for a beneficiary believed to be living overseas. The court was satisfied that the inquiries were proportionate and genuinely exhaustive given the circumstances.
By contrast, in Stoyan v Johnson[4], the two named beneficiaries had predeceased the testator, but there was a possibility that living family members existed overseas. The court found that further steps remained available to the estate trustee to ascertain those potential beneficiaries, specifically, genealogy tracing, and declined to grant a Benjamin Order – a reminder that the remedy is simply not available on request.
I recently acted as counsel for the applicant on a successful Benjamin Order application. The testator had died approximately six years before the application was heard. In the intervening years, the applicant and prior counsel had taken numerous steps to locate a beneficiary known to have been estranged from his family for many years before the testator’s death, including contacting the Office of the Public Guardian and Trustee to determine whether it held an existing file on the beneficiary, reaching out to close and distant family members and, through them, more remote contacts, conducting online searches, attempting old phone numbers, and reviewing all of the testator’s personal paperwork which contained no usable contact information. These efforts were compiled into a large evidentiary record placed before the court and supported the applicant’s affidavit. The court was satisfied that these efforts were sufficient to establish that all reasonable options for locating the beneficiary had been exhausted – a conclusion reinforced by the fact that very little remained in the estate that would have been distributed to that beneficiary in any event.
Practical Guidance for Estate Trustees
If you are an estate trustee and cannot locate a beneficiary, a few principles are worth keeping in mind:
Start early and document everything. Courts want to see a clear record of what was done, by whom, and when. Searches conducted by a qualified investigator or tracing agency, correspondence with known family members, and searches of public records and social media should all be preserved.
Don’t assume a Benjamin Order is your only option. Depending on the circumstances, paying the missing beneficiary’s share into court and distributing the balance of the estate may be more appropriate.
Expect the process to take time. A Benjamin Order is not typically granted in the immediate aftermath of a testator’s death. Courts will want to see that a reasonable period has passed and that the search effort has been sustained, not sporadic.
Get advice before you distribute. An estate trustee who distributes assets without adequately accounting for a potential beneficiary – even in good faith – can be personally exposed. Where there is any uncertainty about a beneficiary’s status, it is worth seeking direction from the court, or at a minimum, legal advice, before finalizing a distribution.
How We Can Help
Locating missing beneficiaries and, where necessary, bringing an application for a Benjamin Order requires careful attention to the evidentiary record and a clear understanding of how Ontario courts have approached this issue. Our Estates team regularly advises estate trustees navigating these situations, from structuring an appropriate search to preparing and bringing the court application itself.
If you are an estate trustee dealing with a missing beneficiary, please contact our office to discuss your options. This article is intended for general information purposes only and does not constitute legal advice.
[1] Re Wieckoski Estate, 2013 SKQB 297
[2] Kapousouzian Estate v Spiak, 2014 ONSC 2355
[3] Steele v Smith, 2018 ONSC 4601