Wyndham v Mackenzie

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.