Missing beneficiaries and Benjamin orders

A recent High Court decision considered how an estate could be dealt with when a beneficiary is not responding to those administering it.

In the case of Nicola Anne Lowe v Lucy Daniells [2025] EWHC 3297 (Ch), the residue of the estate had been left to the deceased’s granddaughter. The solicitors acting on the administration of the estate had written to her on several occasions over a 7-year period, asking for her co-operation with the identity checks they would need to carry out to distribute the residue to her. Despite the solicitor explaining that there were substantial funds due to the granddaughter, the granddaughter insisted that this was not the case and did not provide the necessary documentation.

As a result of her persistent failure to engage, the solicitors sought direction from the court as to how to conclude the administration of the estate. The will had provided that in the event that the gift to the granddaughter failed, the residue would instead pass to two other beneficiaries. If the granddaughter’s actions could be interpreted as a disclaimer of the gift, the solicitors could then pay the residue to the substitute beneficiaries.

The court considered that with the substitute beneficiaries not having been made party to the proceedings, it was not appropriate to determine whether there had been a disclaimer. Recognising, however, that the solicitors needed to be able to conclude the administration of the estate, the court set out the two possible options:

1. Allow the personal representative to pay the residue into court, and if the substitute beneficiaries wished to claim it, they could issue proceedings against the granddaughter.
2. Making a Benjamin order to permit the personal representative to distribute the residue to the substitute beneficiaries and absolve the personal representative from personal liability to the granddaughter if she did try to claim residue in the future. The granddaughter would still be able to make a claim to retrieve the residue from the substitute beneficiaries.

It was ultimately decided that the Benjamin order was the appropriate way to proceed.

It is the responsibility of the personal representative to take all reasonable steps to identify and locate the correct beneficiaries and distribute the estate according to the will or laws of intestacy. However, where these have not yet been taken, it is still not possible to distribute the whole of the estate; the court may be prepared to make an order to facilitate the conclusion of the estate administration.

In some situations, it may be possible to avoid the costs of a court application by distributing the estate to the beneficiaries who have been identified on the basis that they provide the personal representative with an indemnity or with a missing beneficiary insurance policy being put in place. Another alternative may be to pay the funds into court. These would all enable the personal representative to distribute the estate without being worried about having a personal liability to make payment if a missing beneficiary later comes forward.

When administering an estate where there are missing or unidentified beneficiaries, it is important to take professional advice to protect personal representatives from potential claims. Our Private Client department would be able to assist and can be contacted on 020 7613 1402 or privateclient@rfblegal.co.uk.