Ascertaining Beneficiaries: More Than Just a Facebook Search

You are the estate trustee of a deceased person’s estate, but after conducting an exhaustive search, you cannot locate all of the beneficiaries of the estate, or you are worried that other beneficiaries within a specific class may exist. This situation is not uncommon, and it appears to be more prevalent where the deceased emigrated from a foreign country and left family behind, and where the deceased died without a valid Will or there was poor succession planning.

This was the dilemma in Stoyan v. Johnson, 2021 ONSC 7483 (“Stoyan”). In that case, the deceased died at the age of 86.¹ He had made a will, yet his only beneficiaries (his wife and son) had predeceased him.² Accordingly, the deceased died intestate and there was a possibility that he had living family in Greece or Macedonia, having been born in that region. The alleged first cousin of the deceased was appointed as estate trustee without a will, but died prior to the administration of the Estate being finished, and so the first cousin’s daughter was later appointed as succeeding estate trustee. ³

In Stoyan, to resolve this succession issue, the succeeding estate trustee sought a “Benjamin Order”. A Benjamin Order permits the distribution of the estate in cases where beneficiaries have gone missing or their existence is unclear, and acts to absolve the estate trustee from liability were that missing beneficiary to subsequently come forward. The estate trustee in Stoyan sought a declaration that the only remaining beneficiaries were her father’s estate and her aunt.

So what did the court ultimately order in Stoyan? Before we get there, let’s review some of the jurisprudence on Benjamin Orders.

Benjamin Orders in Canada

Estate trustees are required to make a full enquiry into whether they have located all beneficiaries to a Will. But what does that “full enquiry” entail, and what steps must you take before you end your search for potentially missing beneficiaries?

In Wieckoski Estate 2013 SKQB 297, the deceased had died intestate in 1981, but the provincial public guardian and trustee was only granted letters probate in 2008. The Saskatchewan Court of Queen’s Bench held that the sufficiency of the enquiries that have been made to ascertain or locate beneficiaries will depend on the facts of each particular case.⁴ The court distilled the framework for the missing beneficiary inquiry into several questions that the Estate Trustee must ask themself:

• Why is the question being asked? Is there specific evidence that there is or may be a missing beneficiary?
• How much time has elapsed since the death of the testator?
• What are the specific steps that have been taken, and over what period of time, to answer the question?
• Who has conducted the enquiries? Were they appropriately qualified to investigate the matters at issue?
• Do the enquiries take due account of matters such as the possible location of the beneficiary or of potential evidence as to the matter at issue?
• Is it possible that pursuing further avenues of enquiry, or deferring the decision, might result in a claim or generate further information? What is the cost and delay associated with pursuing those avenues, and what is the likelihood they may succeed?
• What is the amount at stake?

The court in Wieckoski Estate found that sufficient enquiries had been made to find the beneficiaries of the Estate. The public guardian trustee went so far as to retain a qualified genealogy expert to provide a comprehensive search for any potential heirs to the deceased, and who found that the deceased did not have any surviving issue.⁵

Steele v. Smith, 2018 ONSC 4601 is an example of an Ontario court granting a Benjamin Order. The facts were very different than in Wieckoski Estate. The deceased died with a Will, about a year prior to the estate trustee bringing an application for a Benjamin Order. One of the deceased’s brothers, a beneficiary to the Estate’s residue, could not be located, hence the reason for seeking the Benjamin Order.

In granting the Benjamin Order, the court in Steele noted that the estate trustee had sufficiently made extensive efforts to search for the missing brother, including conducting on-line searches, contacting family members, and employing a U.K. tracing company, where the brother was presumed to be living.⁶

In Kapousouzian Estate v. Spiak, 2014 ONSC 2355, the estate trustee of an intestate estate worth $349,000 sought a Benjamin Order. In that case, the estate trustee had “conducted inquiries through the deceased’s known friends and through the persons named in the Will. With the assistance of a qualified investigator in Bulgaria and counsel in Greece, extensive efforts, including archival searches, phone calls and social media contact, have been made in a targeted manner”.⁷ The court granted the requested Benjamin Order.

Finding in Stoyan

In Stoyan, the applicant took the following steps to search for beneficiaries:

• He arranged for an advertisement to be placed in a newspaper in north-western Greece and Northern Macedonia;⁸
• The applicant contacted a genealogical firm in the United Kingdom and Greece to do some genealogical research in Greece, but due to European Union laws governing privacy, the firm’s researchers were unable to conduct a search of the public records in Greece.⁹ However, the evidence suggested that the genealogical firm could access these records if they were provided with the proper authorization and direction from a family member;¹⁰ and
• The applicant researched family records and consulted with extended family and relatives.¹¹

Unlike the other cases reviewed, the applicant’s efforts were not enough for the court to grant the Benjamin Order. The court noted that there remained many unanswered questions respecting the deceased’s next of kin and the rightful heir to the estate, and attributed at least some of those unanswered questions to the fact that there had been no proper tracing of the deceased’s genealogy.¹² The court held that reasonable efforts would need to be made to ascertain whether the Deceased’s son died leaving issue, whether there remained any of the deceased’s aunts, uncles, their children, and the deceased’s father.

Conclusion

Since Wieckoski, it appears that courts may expect credible genealogical searches to be conducted (or at least the retainer of a professional investigator) prior to granting a Benjamin Order and absolving the estate trustee of liability from any unknown beneficiaries that subsequently come forward. Unfortunately, there is a dearth of new case law in this area to be able to confirm what the court will require with any degree of certainty. Further, the existing case law since Wieckoski Estate does not always refer to the quasi-test listed in that decision, which begs the question as to what specific test should apply when determining whether to grant a Benjamin Order.