An update on Benjamin orders

Re Fassam, Lowe v Daniells and Re the Jesus Fellowship Community Trust

By Frank Ng

This article considers three recent judgments concerning Re Benjamin orders, under which trustees or personal representatives are permitted to distribute a fund on certain (unproven) assumptions without incurring personal liabilities to any prejudiced beneficiary. If it transpires that the distribution was in fact unlawful, any prejudiced beneficiary is left with only a remedy against the recipient. The classic example is where a beneficiary is missing and it is not known if or when they died - a court might make a Benjamin order permitting the trustees to distribute to those entitled on the assumption that the missing beneficiary died before obtaining a vested interest (see Re Benjamin, Neville v Benjamin [1902] 1 Ch 723).