Let me set the scene. You are the executor of your Aunt Etna’s estate. Her only son disowned her when he was in his twenties as he wanted to open a dog tattoo business and she was not as supportive of his dreams as he would have liked. Let’s call him Waldo. You had a very close relationship with Aunt Etna and she asked if you would be her executor.

Aunt Etna recently had some health troubles and you, being the responsible niece/nephew you are, decided to review her will. Aunt Etna divided her estate as follows:

  • ½ to Waldo
  • ¼ to your sister
  • ¼ to you

This is where the worry sets in. You and Aunt Etna haven’t heard from Waldo in about fifteen years and have no clue as to his whereabouts. She has tried to make attempts to mend the relationship, but to no avail. The last time he made contact with your Aunt, it was only a brief phone call. Now you’re beginning to wonder what will happen when Aunt Etna passes away and you are responsible for distributing her estate. What if you can’t find Waldo?

Not to worry – I have a few options for you.

First, you can leave things as they are for now. This is probably a difficult time for Aunt Etna, as she’s elderly and has health problems. When it comes time to distribute her estate, you would be surprised how easy it is to find people when you have money for them (especially since the dog tattooing business is not booming). You could hire a private investigator, search the internet, even Facebook may be able to assist you. Finding Waldo may not necessarily be the daunting task you thought it would be.

However, if you have made genuine, reasonable efforts, it may be time to look at other options. Section 147 of the new Wills, Estates and Succession Act (“WESA”, for short) deals with just this issue. If a person dies leaving a gift to a beneficiary who cannot be found by reasonable efforts within 12 months of the grant of probate, the executor can pay that beneficiary’s portion into court. You have extinguished your duties as executor in regards to Waldo and can leave those funds in the court’s hands. The Unclaimed Property Act will do the rest.

Alternatively, an executor can apply to the court under section 39 of the Trustee Act for an order that they are at liberty to distribute the estate among the other beneficiaries. If you are concerned that Waldo may have predeceased his mother, and there is no possibility of ever finding him, this is a possibility.

There is also another option to consider. Aunt Etna could revoke her will and create a new one, if she still has the capacity to do so. The concern here is that Waldo could bring a claim under WESA to vary the will. Division 6 of WESA, formerly known as the Wills Variation Act, allows for a will-maker’s spouse or children to bring a claim that they should have been provided for under their spouse or parent’s will.

However, there are exceptions to these rules. For example, the fact that Waldo disowned his parents many years ago may be proper reason for Aunt Etna to exclude him from her will.

This is a tricky and delicate area of the law. Therefore, before you go asking Aunt Etna to change her will or try to deal with her estate on your own, I urge you (and Aunt Etna) to seek legal advice to understand your legal rights and obligations.