Estate administration can be a complex and time-consuming process, particularly when a beneficiary is missing. Executors, Administrators, and trustees have a legal duty to distribute an Estate according to the deceased’s Will or intestacy laws, but when an heir cannot be found, the process may be stalled indefinitely.
To address this issue, courts in Hong Kong, like those in other common law jurisdictions, may grant a Benjamin Order, a legal mechanism that allows Estate Administrators to proceed with distribution on the assumption that certain events have or have not happened, such as the missing beneficiary is deceased. The recent case of HCMP 1750/2024 in the estate of LIN FAT WONG also known as WONG LIN FAT (黃連發)[1], illustrates how Benjamin Orders are applied in Hong Kong.
What is a Benjamin Order?
A Benjamin Order is a court order that permits the distribution of an Estate on the assumption that certain events have or have not happened, such as the missing beneficiary is deceased. The name originates from the English case Re Benjamin [1902], in which a beneficiary could not be found, and the court allowed the estate to be distributed as if he had died. This order does not extinguish the missing beneficiary’s rights – if they later reappear, they may still have a claim, but it protects executors and trustees from liability, ensuring that they are not personally responsible for distributing the estate based on reasonable assumptions.
Benjamin Orders are particularly useful in situations where a beneficiary has been missing for many years, and exhaustive searches have failed to locate them. They ensure that estates do not remain indefinitely frozen due to unresolved uncertainties. However, courts do not grant such orders lightly; executors must demonstrate that they have made reasonable and diligent efforts to locate the missing beneficiary before seeking legal relief.
How HCMP 1750/2024 illustrates the application of Benjamin Orders in Hong Kong
The case of HCMP 1750/2024 provides a recent example of how Hong Kong courts approach estate distribution when a beneficiary is missing. Wong Lin Fat passed away in 1999, leaving behind a will that provided for his second wife, Man Mei Kam (文美金) (“MMK”). Under the will, MMK was entitled to receive rental income from the Deceased’s properties for the rest of her life. However, since Deceased’s passing, she had seemingly vanished, and no one had been able to locate her for over 25 years.
The co-administrators of the Estate undertook extensive efforts to trace her whereabouts. They searched official probate and death records in both Hong Kong and the United Kingdom, placed advertisements in multiple newspapers, and even visited her last known residence in London. Despite these comprehensive efforts, they were unable to obtain any information about her whereabouts or confirm whether she was still alive. Given that MMK would have been 82 years old if alive and had made no claims on the estate in the decades since Wong’s passing, the administrators applied for a Benjamin Order, requesting permission to distribute the Estate on the assumption that she had passed away without heirs.
After reviewing the evidence, the Court granted the Benjamin Order, allowing the Estate to be distributed accordingly. The ruling acknowledged that the administrators had made sufficient and reasonable efforts to locate MMK and that, given the passage of time, it was reasonable to assume that she was deceased. The decision finally brought an end to 25 years of uncertainty, ensuring that the Estate could be settled and distributed to the remaining beneficiaries.
Other perspectives on Benjamin Orders
While the Wong Lin Fat case demonstrates how Benjamin Orders work in Hong Kong, courts do not grant such orders automatically. Two other cases, Yu Yee Luen & Another v So Yu Lung & others [2022][2] and HSBC Trustee (Hong Kong) Limited, the sole executor and trustee of the Deceased’s Estate v Lam Moon Wing & others [2023][3], provide further insights into the legal and practical factors courts consider when assessing whether to grant a Benjamin Order.
In Yu Yee Luen & Another v So Yu Lung & others [2022] HKCFI 2403, the Court emphasized the importance of due diligence in searching for a missing beneficiary. The case involved an Estate where one of the beneficiaries had not been seen or heard from in many years and the executors had undertaken extensive efforts to locate the individual. The Court ruled that executors must demonstrate that they have exhausted all reasonable avenues and no evidence shows that further efforts will yield positive results. It also highlighted that the passage of time is a critical factor, as courts are more inclined to grant such an order when a beneficiary has been missing for an extended period. Furthermore, the Court recognized that the cost of further searches must be weighed against the likelihood of success. If additional searches would be disproportionately expensive with little chance of yielding results, the court may approve estate distribution.
Similarly, in HSBC Trustee (Hong Kong) Limited, the sole executor and trustee of the Deceased’s Estate v Lam Moon Wing & others [2023] HKCFI 199, the court reinforced the principle that trustees must balance the rights of missing beneficiaries with the interests of other heirs. The Court ruled that investigations should be proportionate, meaning that if a beneficiary has been missing for decades and further searches are unlikely to succeed, courts are inclined to grant relief.
Together, these cases establish that while courts require thorough and well-documented searches before granting a Benjamin Order, they also recognize that estate matters must eventually be resolved.
Tips for Executors or Administrators applying for a Benjamin Order
For executors or trustees seeking a Benjamin Order, thorough documentation and diligent efforts are key. Courts will only grant such an order if they are convinced that all reasonable steps have been taken to locate the missing beneficiary. These steps typically include but not limited to:
- Conducting comprehensive searches of government records, probate registries, and financial institutions;
- Contacting family members, known associates, and legal representatives who may have information on the missing beneficiary’s whereabouts;
- Placing advertisements in newspapers or online to invite the missing beneficiary to come forward;
- Engaging professional investigators if the case warrants more extensive searches; and
- Maintaining detailed records of all steps taken, as courts will scrutinize these efforts before granting relief.
Executors should also consider seeking legal advice early in the process to ensure compliance with court requirements. If all reasonable efforts have been exhausted and the beneficiary remains untraceable, an application for a Benjamin Order may be the best course of action to resolve the estate efficiently and fairly.
Final Thoughts
Benjamin Orders play a crucial role in estate administration by providing a legal pathway for distributing assets when a beneficiary is missing. The Wong Lin Fat case (HCMP 1750/2024) illustrates how Hong Kong courts apply this principle, ensuring that executors act responsibly while preventing Estates from being indefinitely stalled. The Yu Yee Luen and Lam Moon Wing cases further clarify the due diligence required before such an order is granted and emphasize the balance between fairness and practicality.
For executors and trustees, these cases underscore the importance of thorough searches, meticulous documentation, and legal guidance. Courts will not grant a Benjamin Order lightly, but they recognize that estate matters must eventually be settled. By following established legal principles, estate administrators can navigate these challenges while ensuring that the deceased’s wishes are fulfilled and beneficiaries receive their rightful inheritance.
Hugill & Ip has extensive experience in dealing with Estate Administration issues – so kindly get in touch to find out how our solicitors can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
The article was also published on the Legal 500 website
[1] [2024] HKCFI 2686
[2] [2022] HKCFI 2403
[3] [2023] HKCFI 199
