The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband’s estate included mortgages of land in New Zealand and the House was asked whether, on the widow’s death, probate duty was payable on the value of her interest in these New Zealand mortgages. Her executors argued that since the mortgages were foreign assets probate duty was not payable on the widow’s share in them.
Held: Duty was payable. Lord Herschell said: “the whole fallacy of the argument on behalf of the appellants rests on the assumption that [the widow], or they as her executors, were entitled to any part of these New Zealand mortgages as an asset – she in her own right, or they as executors of their testatrix. I do not think that they have any estate, right, or interest, legal or equitable, in these New Zealand mortgages so as to make them an asset of her estate. What she had a right to – what they as her executors had a right to – was one-fourth of the clear residue of [her deceased husband's] estate – that is to say, what remains of his estate after satisfying debts and legacies; and a bequest to them of one fourth part of his residuary estate does not seem to me to vest in them or in her a fourth part of each asset of which that estate consists.” The widow’s estate did not have a proprietary interest in the specific asset of her husband’s estate that the New Zealand mortgages constituted.
Judges: Lord Herschell
References:  AC 11,
- Commissioner of Stamp Duties (Queensland) -v- Livingston, PC, Cited, ( AC 694, Bailii,  UKPC 2)
- Maye, Re (Northern Ireland), HL, Cited, (Bailii,  UKHL 9)
- Raymond Saul & Co (A Firm) -v- Holden and Another; In re Hemming (deceased), ChD, Cited, (Bailii,  EWHC 2731 (Ch), Times,  WTLR 1833,  NPC 122,  2 WLR 1257,  Ch 313)
- Dr Barnardo's Homes National Incorporated Association -v- Commissioners for Special Purposes of the Income Tax Acts, HL, Cited, ( 2 AC 1)
- Marshall (Inspector of Taxes) -v- Kerr, HL, Cited, (Times 05-Jul-94, Gazette 03-Aug-94, Ind Summary 18-Jul-94,  STC 148,  1 AC 148)