Heward v Queen

The parties to this dispute were the executors of the estate of the late Mr. Heward and the Crown. The central issue concerned the assessment of probate duty payable on certain gifts made by the deceased during his lifetime. The matter came before the High Court of Australia.

The High Court was required to determine whether gifts inter vivos made by the deceased within three years of his death were liable for probate duty. Further, the Court had to ascertain the rate at which such duty should be levied, specifically whether it should be calculated based on the value of the deceased's estate at the time of his death or at the time the gifts were made.

The Court considered sections 102 of the *Administration and Probate Act 1890* (Vic.) and section 11 of the *Administration and Probate Act 1903* (Vic.), along with the First Schedule, Part I of the latter Act. The reasoning focused on the interpretation of these provisions regarding the inclusion of gifts in the dutiable estate and the applicable duty rate. The Court held that gifts made within three years of death were indeed dutiable. However, it was determined that the duty was to be calculated on the value of the deceased's estate as it stood at the time of his death, not at the time the gifts were made. This interpretation aimed to ensure a consistent and fair application of the probate duty legislation.

The appeal was allowed in part, with the Court ordering that the probate duty be assessed on the value of the estate at the time of death.