All About Estates

It’s All About The Benjamin Orders

Did William die? If so, when? These were the central issues addressed in Steele v. Smith, 2018 ONSC 4601. There, the Court had to consider whether the estate trustee of William’s sister’s estate should receive a “Benjamin Order”, permitting the estate trustee to distribute the residue of her estate as if William had predeceased her.

The testator (William’s sister) was born in Northern Ireland on December 23, 1922 and later immigrated to Canada. She died in January 18, 2017. Her will provided, inter alia, that her brother William Graham would receive a share of her estate, but if he predeceased her then his share would go to two of the testator’s nieces.

The estate trustee, a long-time friend of the testator, took extensive steps to locate William, including employing a U.K. tracing company. William could not be located. William had sired a son, John, who was apparently conceived during an illicit affair between William and his sister-in-law Maureen. John was given up for adoption. Unsurprisingly, neither John nor Maureen were interested in talking with the estate trustee about William.

Because William could not be found, the estate trustee applied for a “Benjamin Order” (named after the 1902 U.K. case Neville v. Benjamin) that would permit a distribution of the estate as if William predeceased the testator. Importantly, a Benjamin Order does not grant a declaration of death, but allows for a distribution as if the individual had predeceased the testator. The lost beneficiary retains the right to come forward at a later date and claim what is rightfully his or hers if any property remains undistributed.

Benjamin Orders have been granted in several jurisdictions, including Ontario. The standard for granting a Benjamin Order was whether or not the estate trustee had made “full inquiries”. The Court cited the Saskatchewan Court of Queen’s Bench decision in Re: Wieckoski Estate, 2013 SKQB 297 which set out questions that may assist in determining whether these full inquiries had been made. These including, what evidence exists, how long has it been since the testator’s death, what specific steps have been taken and by who (e.g. are they qualified) and what is the amount at stake.

The Public Guardian and Trustee proposed that instead of a Benjamin Order, William’s share of the estate be paid into court and further steps to ascertain William’s whereabouts should be pursued.

Nevertheless, the Court granted the Benjamin Order, finding that the estate trustee had gone to extensive lengths to locate William. There was no reason why William would chose not to be found at this time. The Court dryly noted that William may have had a reason at one time to hide his location, when he was being threatened by his cuckolded brother. However, that brother died a long time ago.

The Declarations of Death Act, 2002 which, appropriately enough allows for a declaration that an individual has died, was not cited in this case. This is likely because as there is no evidence that William “disappeared in circumstances of peril”, the deemed date of death would be as at the date of the application, i.e. after the testator had died.

Granting a Benjamin Order in these circumstances allowed for a proportionate path forward to finalize the estate. However, there was no evidence that would suggest that William would have died before or after the testator’s death. If William was deemed to die after the testator’s death (e.g. if the Declarations of Death Act, 2002 had been utilized), then the interest of his biological son John would need to be considered. Under Ontario adoption law, adopted children have no interest in their biological parent’s estates after being adopted. However, John presumably would have been adopted under Northern Irish law where the same rules might not apply.

Ultimately, however, if William is alive or if John has evidence that William died after the testator (and John can prove he has an entitlement to William’s estate under Northern Irish law) then either of them have the opportunity to come forward before the estate is distributed. The clock is still ticking.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email: jkaufman@devrieslitigation.com

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