Wyndham v Mackenzie - [1918] HCA 46

WYNDHAM AND OTHERS

MACKENZIE AND OTHERS

RESPONDENTS. Administration and Probate- Testamentary expenses-Stamp duty-Corpus com-

missionDirection in will to pay out of residue-Erroneration of real estate- Stamp Duties Act 1898 (N.S.W.) (No. 27 of 1898), secs. 4. 49, 56, Third Schedule -Perpetual Trustee Company (Limited) Act 1888 (N.S.W.), sec. 13-Wills, Aug. 8, 9, 23.

Probate and Administration Act 1898 (N.S.W.) (No. 13 of 1898), secs. 44,46,61.

By secs. 4 and 49 of the Stamp Duties Act 1898 (N.S.W.) and the Third Schedule thereto, stamp duty is imposed upon probate or letters of adminis- tration to be granted in respect of any estate real and personal of deceased persons. By sec. 56 it is provided that "(1) Any duty payable under this Act by any executor or administrator shall be deemed to be a debt of the testator or intestate to Her Majesty, and shall be payable out of his personal estate. (2) If the personal estate is insufficient to pay such duty the executor

may apply to the Supreme Court, which may order that a sufficient part of the real estate be sold to pay the said duty. (3) Every executor or administrator may deduct from any property devised or bequeathed to any person an amount equal to the duty thereon, calculated at the same rate as is payable upon the estate under this Act, unless the testator has made a different disposition as to the payment of the said duty in his will."

By sec. 13 of the Perpetual Trustee Company (Limited) Act (N.S.W.), it is provided that the Company shall be entitled to receive a commission not exceeding a certain percentage upon the corpus, and a certain other percentage upon the income, of any estate of which the administration shall have been committed to it, which commission shall be accepted by the Com- pany in full satisfaction of any claim to remuneration for acting as executor, administrator, trustee, &.

25 CLR 173

By his will a testator, having disposed of certain of his real and personal estate, directed his trustees, the Perpetual Trustee Co. Ltd., to sell, call in and convert into money the residue of his real and personal estate and to pay thereout in the first place his debts, funeral and testamentary expenses.

Held, that the stamp duty payable under the Stamp Duties Act 1898 and the corpus commission payable under the Perpetual Trustee Company (Limited) Act were testamentary expenses; that the direction in the will was a different disposition' within the meaning of sec. 56 (3) of the Stamp Duties Act 1898 in respect of the proportion of the stamp duty referable to the real estate as well as of that referable to the personal estate and that under the direction in the will the whole of the stamp duty and the whole of the corpus commission must be paid out of the residue.

Perpetual Trustee Co. Ltd. v. Tasker, 13 S.R. (N.S.W.), 322, overruled. Carmichael v. Ryan, 20 N.S.W.L.R. (Eq.), 137, approved.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wyndham v Mackenzie

Details

AGLC: Wyndham v Mackenzie [1918] HCA 46
Case: [1918] HCA 46
Decision Date: 23 August 1918

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from the interpretation of a testator's will and relevant legislation concerning the payment of stamp duty and corpus commission. The testator directed his trustees to sell his residuary real and personal estate and to pay thereout, in the first instance, his just debts, funeral and testamentary expenses. The question was whether the New South Wales stamp duty and the corpus commission payable to the Perpetual Trustee Company Ltd. were to be paid entirely out of the residue, as contended by the appellants, or only in proportion to the personal estate, as determined by the Supreme Court.

The legal issues before the High Court were whether the stamp duty payable under the Stamp Duties Act 1898 (NSW) and the corpus commission payable under the Perpetual Trustee Company (Limited) Act 1888 (NSW) constituted "testamentary expenses" for the purposes of the testator's will. Specifically, the court had to determine if the testator's direction to pay testamentary expenses out of residue constituted a "different disposition" within the meaning of section 56(3) of the Stamp Duties Act 1898, thereby requiring the entirety of these expenses, including those attributable to real estate, to be paid from the residue.

The High Court reasoned that both the stamp duty and the corpus commission were indeed testamentary expenses. The court distinguished the present case from English authorities that had limited the scope of "testamentary expenses" in the context of real estate, finding that the New South Wales legislation, particularly sections 44, 46, and 61 of the Wills, Probate and Administration Act 1898, had assimilated the administration of real and personal property to such an extent that the old distinctions no longer applied. The court held that the testator's direction to pay testamentary expenses out of residue was a clear and unambiguous "different disposition" under section 56(3) of the Stamp Duties Act 1898, meaning the whole of the stamp duty and the whole of the corpus commission were payable out of the residue, thereby exonerating specifically devised or bequeathed property.

Consequently, the High Court allowed the appeal, reversing the decision of the Supreme Court. The court ordered that the stamp duty and the corpus commission were to be paid out of the residue of the estate.

Orders