Trustees making a distribution who cannot locate a beneficiary have a number of possible alternatives; protection by advertising, missing beneficiary insurance, a re Benjamin order or a payment into court. The trustee of a unit trust who cannot locate a unitholder is, however, in a difficult position.
The missing unitholder (or if he is deceased, his estate) is absolutely entitled to the amount of his distribution, and there is no one else who might take in default. If the trust deed provides that a distribution not claimed within 12 years shall be forfeited, then it may be proper after that time to pay an unclaimed amount to the other unitholders, but in other cases how is the trustee to obtain a discharge? There is no protection by advertising, since the trustee is aware of the missing unitholder’s entitlement. A re Benjamin order authorising a distribution of the unclaimed amount to the other unitholders would not be appropriate in a situation where the missing unitholder’s entitlement is undoubted. A payment into court would be ideal, however payments in are generally discouraged by the courts.
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