August 26, 2017 |

NSW Will Dispute Lawyer makes successful application on behalf of Executors


Application of Harnett and Cutts [2016] NSWSC 427

 The Law

To save any future will dispute the lawyer made an application by the executors of the estate of the late Frederick Cutts who died on 21 October 1954. It relates to their inability to locate the last known beneficiary of the estate and effectively seeks to excuse them from any further attempt to do so.

Executors can ask for an order called a ‘Benjamin order’, a form of order derived from a 1902 case re Benjamin.

Hallen J made the following observations about Benjamin orders, which I summarise as follow:

 “It may happen that distribution of an estate is held up because the representatives cannot be sure who is entitled. A person's right to share in the estate may turn on the question whether another predeceased the testator, predeceased him without issue, and it may be uncertain on the facts whether this happened. In these circumstances, the representatives may apply to the court for a "Benjamin" order. That is, an order permitting them to distribute the estate on the footing that certain events have or have not happened.

The effect of such an order is to relieve the representatives of liability in their capacity as representatives should the hypothesis on which they are to be permitted to distribute turn out to be wrong. Thus, where a beneficiary who was thought to have predeceased a testator subsequently appears, he will not be entitled to bring a claim against the representatives for his share of the estate. He may, however, be entitled to claim in equity against the beneficiaries who have been wrongly paid or perhaps bring a tracing action against the recipients of the share.”

The effect of a Benjamin order is to enable the executor to distribute the estate to those members of the class which have been ascertained at the time of distribution, whilst ensuring protection of the executor if a person entitled to a portion of the estate subsequently appears. If such a person does appear, he or she is not entitled to make a claim against the executor for that portion but may claim against beneficiaries who have been paid incorrectly.

The true view is that such an order  order does not vary or destroy beneficial interests. It merely enables trust property to be distributed in accordance with the practical probabilities.

Hallen J said "I do not think that the question whether such an order should be made depends on whether or not there will be administrative inconveniences caused by the trustees retaining the fund. I think it depends on whether in all the circumstances the trustees ought to be allowed to distribute and the beneficiaries to enjoy their apparent interests now rather than later."


There were many children of many relatives involved in the case going back many years. They were searching for David Edward Gordon.


Frederick (Eric), the sixth child of Frederick and Amy, died in 1976. The sole child of Eric is Allan Frederick Cutts. Allan is a joint executor of this estate and one of the plaintiffs.

After the death of Amy on a date unknown, Frederick married a second time on 15 April 1936, to Adelaide Woodhead. There is no evidence that Frederick and Adelaide had any children of their own.

Searches and Enquiries

The executors were unable to locate one of the beneficiaries. In their search for David Edward Gordon they searches all sorts of records including Salvation Army, Probate register, Births Deaths and Marriage register, Immigration department, Border Protection, NZ High Commission and many more. No luck

Court Order:

The plaintiffs were entitled to cease any further next-of-kin searches for David Edward Gordon.

That the plaintiff be at liberty to distribute the share of the estate set aside for David Edward Gordon to the remaining surviving beneficiaries in equal shares.

That the costs of these proceedings be paid out of the estate on an indemnity basis. Meaning all of the costs involved were paid out of the estate.

Eric Butler




doyles Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

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