Commissioner of Stamp Duties (Queensland) v Livingston

JurisdictionUK Non-devolved
Judgment Date1964
Date1964
CourtPrivy Council
[PRIVY COUNCIL.] COMMISSIONER OF STAMP DUTIES (QUEENSLAND) APPELLANT; AND HUGH DUNCAN LIVINGSTON RESPONDENT. ON APPEAL FROM THE HIGH COURT OF AUSTRALIA. 1964 Oct. 7. VISCOUNT RADCLIFFE, LORD REID, LORD EVERSHED, LORD PEARCE and LORD UPJOHN.

Australia - Queensland - Revenue - Succession and administration duties - Real and personal property in Queensland of deceased testator - Widow a beneficiary - Death of widow before administration of testator's estate completed - Testator's estate vested in executors in full right - Widow not entitled to any beneficial interest at date of her death - Succession duty in respect of her interest in the testator's Queensland estate not exigible - No right in widow's administrator to administer the Queensland properties as part of her estate - Claim to administration duty unmaintainable - Succession and Probate Duties Acts, 1892 to 1955 (Queensland), ss. 4, 12, 55. - Administration of Estates - Unadministered estate - Residuary legatee - Nature and location of interest - Rights - Assets vested in executor in full right - Succession duty - Queensland.

By section 4 of the Succession and Probate Duties Acts, 1892 to 1955, of Queensland:

“… every devolution by law of any beneficial interest in property … upon the death of any person … to any other person, in possession or expectancy, shall be deemed to … confer on the person entitled by reason of such … devolution a ‘succession’ …”

By section 12 duties on a prescribed scale are levied and charged in respect of “every such succession as aforesaid.”

Section 55 of the Acts provides that

“There shall be paid, in respect of every grant of probate or letters of administration made in respect of the estate of any person dying … duties at the rates mentioned in the Schedule to this Act …”

A testator, who died domiciled in New South Wales, by his will, which was proved in New South Wales, gave his real estate and the residue of his personal estate to his executors and trustees, of whom his widow was one, on trust as to one-third thereof for his widow absolutely. His assets consisted of real and personal estate in both New South Wales and Queensland. The widow died intestate, domiciled and resident in New South Wales, and the testator's estate was at the date of her death still in the course of administration, no clear residue had been ascertained, and, consequently, no final balance payable or attributable to the shares of residuary beneficiaries had been determined. On a claim by the appellant, the Commissioner of Stamp Duties (Queensland), under the Succession and Probate Duties Acts, 1892 to 1955, that the respondent, as administrator of the estate of the widow, or, alternatively, as one of her next-of-kin, was liable to pay succession duty and administration duty in respect of her share of the Queensland assets of the testator on the ground that her death conferred a succession on those becoming entitled to her estate:—

Held, (1) that only those successions were to be charged which occurred by virtue of the law of Queensland, but the widow having died domiciled in New South Wales the devolution of interest that occurred on her death did not operate by virtue of the law of Queensland, and, therefore, if there was to be a taxable succession it must be because she died owning a beneficial interest in real property in Queensland or had beneficial personal property interests locally situate there (post, p. 969).

(2) That in the case of an unadministered estate the assets as a whole were in the hands of the executor, his property, and until administration was complete it could not be said of what the residue, when ascertained, would consist or what its value would be. At the date of the widow's death, therefore, there was no trust fund consisting of the testator's residuary estate in which she could be said to have any beneficial interest because no trust had as yet come into existence to affect the assets of his estate. The testator's property in Queensland, real or personal, was vested in his executors in full right and no beneficial interest in any item of that property belonged to his widow at the date of her death, and succession duty was not therefore exigible (post, p. 970).

The law in Sudeley (Lord) v. Attorney-General [1897] A.C. 11; 12 T.L.R. 224, H.L.(E.) was “conclusive on this issue” and was reaffirmed in the same terms in Dr. Barnardo's Homes v. Special Income Tax Commissioners [1921] 2 A.C. 1; 37 T.L.R. 540, H.L.(E.).; and Sudeley's case (supra) has not been in any way qualified by Skinner v. Attorney-General [1940] A.C. 350; 55 T.L.R. 1025; [1939] 3 All E.R. 787, H.L.(E.).

Cooper v. Cooper (1874) L.R. 7 H.L. 53 could not be recognised today as containing an authoritative statement of the rights of next-of-kin or residuary legatees in an unadministered estate (post, p. 973).

In re Steed and Raeburn Estates, Minister of National Revenue v. Fitzgerald [1949] S.C.R.(Can.) 453 is in line with the views of the board in the present case.

McCaughey v. Commissioner of Stamp Duties (1945) 46 S.R., N.S.W. 192 and Smith v. Layh (1953) 90 C.L.R. 102 considered.

(3) That what the widow was entitled to in respect or her rights under the testator's will was a chose in action, capable of being invoked for any purpose connected with the proper administration of his estate, and the local situation of that asset, as much under Queensland law as any other law, was in New South Wales, where the testator had been domiciled and his executors resided and which constituted the proper forum of administration of his estate (post, p. 978).

(4) That under section 55 of the Acts administration duty was essentially one connected with a Queensland grant of rights of administration obtained for the purpose of administering property in Queensland or under the law of Queensland, and the respondent, who had never applied for any grant or resealing of his letters of administration in Queensland, had no right to administer the Queensland properties as part of the widow's estate. His right was to make sure that the testator's executors administered them properly and to account for her share to the widow's estate, and he did not need Queensland letters for that purpose. Further, section 2 of the Succession and Probate Duties Acts Declaratory and Amendment Act, 1935, of Queensland was inapplicable to the present case since there was no property in Queensland over which the respondent could claim to exercise powers as administrator of the widow, nor, even if he were in a position to exercise such powers in theory, had he ever in fact “taken possession of or in any manner administered such property” within the meaning of section 2. The claim to administration duty was therefore also unmaintainable (post, pp. 979, 980).

Judgment of the High Court of Australia (1962) 107 C.L.R. 411 affirmed.

Appeal (No. 51 of 1962), by special leave, from a majority judgment of the High Court of Australia (Fullagar, Kitto and Menzies JJ., Dixon C.J. and Windeyer J. dissenting) (December 16, 1960) allowing an appeal by the present respondent from a judgment of the Full Court of the Supreme Court of Queensland (Philp and Wanstall JJ. and Stable A.J.) (December 2, 1959) hereby appeals by the respondent against an assessment to succession duty and an assessment to administration duty, both of which were made by the appellant on the respondent in respect of the estate of Mrs. Jocelyn Hilda Coulson, deceased, were dismissed.

The assessments were made in respect of the interest of Mrs. Coulson in certain assets in Queensland of the unadministered estate of her husband, Hugh Duncan Livingston the elder, who died in 1948 domiciled and resident in New South Wales. By his will he appointed Mrs. Coulson and two other persons, all of whom were at all material times domiciled and resident in New South Wales, as the executors and trustees of his will. Under the terms of his will he gave his real estate and the residue of his personal estate to his executors and trustees on trust after payment of debts, testamentary expenses and duties, as to one-third of the residue thereof to his widow, Mrs. Coulson, absolutely.

Before the administration of his estate had been completed and the residue ascertained Mrs. Coulson died intestate on July 8, 1950, domiciled and resident in New South Wales. Letters of administration of her estate, which included the one-third interest in the residue of the unadministered estate of her husband, were granted by the Supreme Court of New South Wales on November 13, 1951, to the respondent, the son of the testator.

At the time of the death of Mrs. Coulson the estate of the testator included certain real estate and personal estate in Queensland. The appellant assessed the respondent to Queensland succession duty and to Queensland administration duty in respect of the estate of Mrs. Coulson by notices dated April 20, 1956. The question in this appeal was whether the appellant was entitled to assess the respondent to those duties in respect of the interest of Mrs. Coulson at the time of her death in the Queensland assets of the unadministered estate of the testator.

The facts appear more fully from the judgment of the Judicial Committee, where the relevant statutory provisions are set out.

1964. June 23, 24 and 25. Sir Milner Holland Q.C. and Michael Nolan for the appellant.

Peter Foster Q.C. and Michael Fox for the respondent.

The following cases, in addition to those referred to in the judgment, were cited in argument: Vanneck v. BenhamF1; Baker v. Archer-SheeF2; In the Goods of Ewing (Decd.)F3; Attorney-General v. Anderton.F4

October 7. The judgment of their Lordships was delivered by Viscount Radcliffe. The main question raised by this appeal from the High Court of Australia concerns a claim by the appellant that the respondent as administrator of the estate of a Mrs. Coulson deceased or, alternatively, as one of her next-of-kin is liable to pay succession duty...

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