When I was in private practice, I almost applied for a Benjamin order on an estate file until I was saved by the Registrar’s record that the sole heir had in fact predeceased the deceased.  The result was one that ended well since the sole niece who had spent a great deal of time and effort caring for the deceased ended up inheriting the entire estate.

A Benjamin order comes from Benjamin, Re, [1902] 1 Ch. 723 (Eng. Ch. Div.).  Justice Antoniani in Durand v. Hamilton, 2024 ONSC 2914 explains this aptly.   “[I]t permits the estate trustee to distribute the residue of the estate as if one of the named beneficiaries has predeceased the testator. To determine whether to make a Benjamin order, the court is to consider all the circumstances, including what steps have been taken to find the beneficiary (ies), who conducted the inquiries, whether the inquiries have considered possible location of the beneficiary and whether further avenues of search are available. All of this is to be considered against the cost of making continued inquiries and the likelihood that they will succeed.”

You may recall the first article on the Benjamin order featured in 2018 written by Jacob Kaufman.  https://www.allaboutestates.ca/?s=%22benjamin+order%22 The case referenced was Steele v. Smith where the deceased’s brother could not be found despite extensive steps taken by the estate trustee to locate him.  In this matter, a UK tracing company was employed and they even discovered that the deceased’s brother had a child with his sister in law.  Though new scandalous facts about the brother emerged, he could not be found notwithstanding the efforts of the estate trustee.  However, the court was satisfied by the extensive lengths taken by the estate trustee to determine the brother’s whereabouts.  The Court added that “there is no reason now why he would choose not to be found.”

So when is the Court not inclined to issue a Benjamin order?  The most recent case in this matter is Justice Antoniani decision in Durand v. Hamilton, 2024 ONSC 2914 where one of the issues was whether to grant a Benjamin order to the estate trustee.  Here, the deceased gave a share of her estate to her sister in law in Hungary, but the estate trustee (the son in law of the deceased) had very little knowledge of her as his wife, the deceased and his father in law (the three who would have had information about her) were all deceased.  He also did not speak Hungarian.  The estate trustee provided limited information to the court about the heir:  her name; her probable residence in Budapest; her anticipated age bracket; letters to her by the deceased’s late husband which were returned undeliverable; and unsuccessful efforts made on social media.  Unlike Steele v. Smith, no efforts were made to hire a tracing company or a genealogist.  Justice Antoniani, however, gave hints to what could or would constitute further efforts: making inquiries to of any living relatives and counsel who prepared the valid last will and testament of each of the deceased and her late husband; publishing notices in media and social media in Hungary.

It will be interesting to read what additional steps the estate trustee in Durand v. Hamilton will take to locate the missing heir and if she in fact will be found.

Sally Lee, Estate and Trust Consultant, Scotiatrust