If a beneficiary can't be found, when is it appropriate to assume they've died? The Superior Court of Justice considered this issue in Steele v. Smith, 2018 ONSC 4601 and granted a Benjamin Order declaring that a missing beneficiary had died before the testator.
Harriet Pleinis died on January 18, 2017. Her will named Mr. Steele as the executor. Her will specified that the residue of her estate was to be divided between her nieces and brothers:
- 20% to her niece Heather
- 20% to her niece Sandra
- 60% split equally between her brothers Hughie, Thomas, and William
The will specified that if any of Harriet's brothers died before her, then their share of the estate would be divided up equally between the two nieces. Hughie and Thomas both died before Harriet. After Harriet's death, Mr. Steel was unable to locate her brother William, who was born in 1925. Mr. Steele conducted online searches, contacted family members, and hired a tracing company. But William could not be found.
Mr. Steele then sought an order from the court declaring that William had pre-deceased Harriet, so that the estate could be distributed. This is commonly referred to as a Benjamin Order. The name is derived from the UK case of Neville v. Benjamin,  1 Ch. 723.
While not particularly common in Canada, courts here have followed Benjamin in a number of cases. Before granting a Benjamin order, the court will consider:
- Is there evidence that the beneficiary is missing?
- How long has it been since the death of the testator? i.e. has there been much time for the beneficiary to be found and come forward?
- What efforts were made to find the beneficiary? Were all possibilities considered? Are there any steps left to take?
- How much money is at stake? The larger the amount, the less inclined the court is to declare a missing person deceased.
Justice Rady considered the evidence and granted the Benjamin Order. Mr. Steele had made many efforts to find William and there were no promising leads. It had been 18 months since Harriet died and there was no reason why William would not want to be found.