In Search of a Beneficiary
Recently at the Practice Gems: Probate Essentials 2014 program held by the Law Society, Ian Hull presented a paper on an estate trustee’s duty to locate unknown and missing beneficiaries with practice tips for how to go about this task.
It is an established common law principle that an estate trustee has a duty to ascertain all the beneficiaries who may have an interest in an estate. The only statutory provision for this common law duty may be found in the Estate Administration Act with regard to beneficiaries who may have an interest in an estate through “birth outside of marriage”.
Section 24(1) of the Estate Administration Act states as follows,
A personal representative shall make reasonable inquiries for persons who may be entitled by virtue of a relationship traced through a birth outside marriage.
However, section 24(2) provides that an estate trustee will not be liable if the estate trustee was not aware of the existence of such a person after reasonable inquiries at the time of the distribution and a search of the parentage records of the Registrar General has failed to disclose a record of the unknown beneficiary. According to the Frequently Asked Questions page of the Office of the Registrar General’s Online Certificate Application website, you may request a search if you do not know the exact date of an event (such as a birth outside of marriage) and this search will verify whether such an event has taken place in the province of Ontario. There is a $15.00 fee for every 5 year period that the search is conducted for.
While a Registrar General search is easy enough to do, this step alone will not discharge an estate trustee’s duty to ascertain all beneficiaries. What is a “reasonable inquiry” is fact specific and case law appears to suggest that more extensive inquiries are required for larger estates and bequests. Estate trustees should be cautioned to conduct further inquiries even when the bequest is small.
Initial inquiries from those who knew the deceased such as friends and neighbours are always the first place to start. Even WikiHow has an article that may help brainstorm ways to find relatives through the internet. Professional researchers may also be retained to conduct more precise and thorough genealogical searches.
Thanks for reading!