Webb v McCracken

The case of *Webb v McCracken* concerned an appeal from the Supreme Court of Victoria regarding the liability of a deceased person's estate for probate duty. The dispute arose from the interpretation of section 13 of the *Administration and Probate Act 1903* (Vict.), which stipulated that property over which a deceased person held a general power of appointment enabling them to dispose of it by will or deed was to be deemed part of their estate for the purpose of estimating probate duty. The Master-in-Equity, as appellant, argued that property over which the deceased, Margaret McCracken, held a general power of appointment by will, as granted under the will of her late husband, Robert McCracken, should be subject to probate duty.

The central legal issue before the High Court was whether a general power of appointment exercisable solely by will fell within the scope of section 13 of the *Administration and Probate Act 1903* (Vict.). Specifically, the Court had to determine if the phrase "a general power enabling him by will or deed to dispose thereof" encompassed a power exercisable only by will, or if it required a power exercisable by either will or deed at the donee's discretion. The Supreme Court had previously held that property subject to a power of appointment by will only was not liable for duty under the Act.

The High Court, in allowing the appeal, reasoned that the plain grammatical meaning of section 13 indicated that the disjunctive "or" meant that a power exercisable by will alone, or by deed alone, would render the property subject to probate duty. The Court rejected the argument that the phrase had a specific technical legal meaning understood by conveyancers, which would limit its application to powers exercisable by either deed or will at the donee's option. Instead, the Court found that the legislature had used ordinary language to describe the power of disposition, and that the intention was to capture property over which the deceased had a general disposing power, regardless of whether that power was exercisable by will, deed, or both. The Court concluded that the property over which Margaret McCracken held a general power of appointment by will was indeed liable for probate duty.