Understanding Benjamin Orders in NSW Probate Law
When someone dies without a will—called dying intestate—distributing their estate can be a tricky exercise, particularly where there is some doubt about a potential beneficiary’s familial relationship to the deceased, and where the records which would prove the relationship are missing or have been destroyed. In The Estate of Arlene Veronica De Leon [2025] NSWSC 529, the NSW Supreme Court was faced with just such a challenge, assessing the evidence available from secondary documents and the evidence of relatives.
What Is a Benjamin Order in Probate?
A Benjamin order is a Court order in which an executor or administrator is entitled to assume a person is either dead or not entitled to a share of an estate—usually because they can’t be found or properly identified. It allows executors to distribute an estate without fear of being sued later if the missing person turns up. These orders are useful but not ideal—they are a workaround when certainty can’t be achieved.
The Case: Arlene De Leon’s Estate and the Missing Sibling
Arlene De Leon passed away in Sydney in 2024, leaving no spouse, children, or living parents. Her estate included about $91,000 in net estate being the residue of a RAD from an aged care facility. Her sister, Grace Pinto, applied for letters of administration as the deceased left no will.
The issue in the case was whether an assumed sibling, Nestor De Leon, who had died years earlier in the Philippines was in fact a biological sibling, being a child of the deceased’s parents. Unfortunately, his birth records were destroyed during World War II. Without formal documentation, it was unclear if Nestor’s children could legally inherit his share of Arlene’s estate.
Why the Court Refused the Benjamin Order
Grace applied for a Benjamin order to pass over Nestor’s children and distribute the estate among those surviving siblings who could prove their parentages. The Court took a different view ruling that Nestor was legally a sibling, despite the absence of formal documentation to prove it. It relied on a number of exceptions to the hearsay rule:
- Reputational evidence (family evidence)
- Grace’s sworn affidavit
- A NSW death certificate for Arlene’s mother listing Nestor as her son
- The Status of Children Act 1996 (NSW)
Therefore, the deceased’s four children and Nestor’s children in respect of his interest were each entitled to a share of the estate under Succession Act 2006 (NSW), section 129.
The Court made clear that compelling personal and reputational evidence—especially when supported by formal documentation like death certificates—can be strong enough to confirm family ties in the absence of official records. This approach avoided unnecessary delays and costs and a just outcome for all beneficiaries, rather than resorting to DNA testing.
What This Means for Families and Executors
This case shows that even when family documents are lost courts can rely on extraneous evidence. And Courts will not always make Benjamin orders in circumstances where a family member’s relationship can’t be by documentary evidence.
Applying for Letters of Administration can throw up some very challenging issues. Legal guidance can help protect everyone’s interests and avoid costly delays.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.
