Estates & Wills & Trusts

Search for missing beneficiary should be proportionate to bequest

By Kirsten McMahon, Associate Editor

When a beneficiary of an estate is missing, an estate trustee must convince the court that they have done a reasonable search before seeking relief, Toronto estates and trusts lawyer Suzana Popovic-Montag tells Law Times.

This search can begin by talking with others named in the will, family members, friends, neighbours and seeking any clues the testator might have left in their own contact information. Advertisements, online searches or hiring a researcher, private investigator or genealogist are other avenues that might garner information, the legal publication reports.

“The searches that are going to be done by the executor are really important because, at the end of the day, the goal here is to find these people, and if you can’t find them, to at least convince the court that you’ve done your very best to find them,” says Popovic-Montag, managing partner of Hull & Hull LLP.

She tells Law Times the extent of the search needs to be in proportion to the size of the estate and the bequest left to the missing individual. For example, spending thousands of dollars on a search for the recipient of a $3,000 bequest doesn’t make financial sense.

“The problem is a little bit exacerbated, too, for executors because the Trustee Act says you have to make reasonable enquiries to find beneficiaries through births outside of marriage,” she says.

Popovic-Montag says a will that directs that all or part of the estate should be left to the testator’s children could include those conceived out of wedlock, heightening the executor’s search responsibility.

If the beneficiary remains missing after what the estate trustee believes to be a reasonable search effort, they can turn to the courts for relief, which includes having the missing person declared dead or seeking an absenteeism order to have someone else accept the bequest, she tells Law Times.

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