Probert v Commissioner of State Taxation No. Scgrg-98-318 Judgment No. S6896

The case involves Probert, the appellant, challenging an assessment of Stamp Duty made by the Commissioner of Stamps following the refusal of the Treasurer to allow her objection to the assessment. The appeal concerns the interpretation of a deed of disclaimer executed by Probert, which she claims should not attract ad valorem duty under the Stamp Duties Act 1923. Probert argues that the deed operates as a true disclaimer, rejecting the benefit conferred by the will, rather than a disposition. The Commissioner contends that the deed constitutes a conveyance falling within the ambit of s71 of the Act.

The central legal issue in this case is whether the deed of disclaimer executed by Probert constituted a true disclaimer that avoids the vesting of any interest in property, or if it was a conveyance that results in a transfer of property. The court had to determine whether the deed should be subject to ad valorem duty as a conveyance under s71(3)(b) of the Stamp Duties Act 1923, or if it should attract the lower rate of stamp duty applicable to deeds not otherwise specified in the Schedule to the Act. The court considered whether the estate of the testator had been administered as of the date of the disclaimer and if there was an ascertainable interest in property that could be subject to ad valorem duty.

The court held that the deed of disclaimer did not constitute a conveyance or disposition of property, but rather a true disclaimer that avoided any potential vesting of benefit in Probert. The court relied on established principles that a residuary beneficiary does not acquire any beneficial interest in the specific assets in the hands of an executor during the course of administration. The court found that the estate had not been administered as of the date of the disclaimer, and there was no ascertainable interest in property that could be subject to ad valorem duty. The court rejected the Commissioner’s argument that the deed constituted a conveyance within the meaning of s60 of the Act, holding that the disclaimer did not vest any property or interest in property in anyone.

The appeal was allowed, and the assessment was set aside. The court determined that Probert’s deed of disclaimer did not operate as a conveyance of property and should not attract ad valorem duty. Instead, it should be subject to the lower rate of stamp duty applicable to deeds not otherwise specified in the Schedule to the Act. The court will hear counsel as to the precise form of order that should be made.