Hypothetical by Manny Wood published in the Coffs Coast News Of The Area on 21 August 2020.
John passes-away, leaving a $1 million estate to his three children equally.
Six months pass and the executors are ready to distribute the estate.
Unfortunately, they are unable to locate one of John’s children, William.
The executors distribute two-thirds of the estate to the children that they are able to locate but retain over $300,000 in trust for William.
Eight years pass and John’s other children approach the executors about releasing William’s share to them. By this time, the executors are more than happy to finalise the estate but are advised to seek approval from the Court, for their own protection.
The Court hears evidence that William has not been in contact with any family member for over 20 years and when they last heard from him, he was on the Methadone program. The Drug and Alcohol Centre and the Salvation Army, operating in his last known place of residence had no record of any attendance by William and could not assist in locating him.
Electoral roll searches were conducted, without success. Unsuccessful property ownership searches were also conducted.
Births, Death and Marriages searches were made in all states of Australia and there was no record that William had married, fathered a child or that he was deceased.
The Court ultimately finds that William went missing in the early 2000’s and that given the lapse of more than the requisite seven years, orders that on the balance of probabilities, he is “no longer alive”.
The Court concludes that the executors had made all reasonable investigations and that although there was some uncertainty as to whether William was still alive, makes a “Benjamin Order” that his share of the estate can be distributed to John’s other children.
If you would like a particular issue addressed please email Manny at manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
