swarb.co.uk - law index
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Inheritance Tax - From: 1960 To: 1969
This page lists 3 cases, and was prepared on 08 August 2015.
Re Philipson-Stow [1961] AC 727
1961
HL
Lord Reid, Lord Denning
Wills and Probate, Inheritance Tax
The section excluded from liability for estate duty property "passing on the death which is situate out of Great Britain if it is shown that the proper law regulating the devolution of the property situate, or the disposition under or by reason of which it passes, is the law neither of England nor of Scotland." Issues relating to a disposition of movables must be determined according to the law of the country of domicile of the deceased at the date of his death. The proper law "regulating" a disposition of immovable property for the purposes of section 28(2) was the lex situs.
Lord Denning confirmed that the question of interpretation depends upon the intention of the testator: "We are dealing with a will: and, whilst I would agree that the construction of a will depends on the intention of the testator, I would say that in no other respect does his intention determine the law applicable to it.
Let me take first the case where there is a disposition of movable property by will. There is no doubt that the proper law regulating the disposition of movables is the law of the domicile of the testator at the time of his death. In the leading case on this subject Lord Carnworth used the word "regulate" in this very connection. When a person dies domiciled abroad, he said, "in every case the succession to personal property will be regulated not according to the law of this country but to that of his domicile": see Enohin v Wylie. There is perhaps an exception in regard to the construction of his will: for if a question arises as to the interpretation of the will and it should appear that the testator has changed his domicile between making his will and his death, his will may fall to be construed according to the law of his domicile at the time he made it: though in all other respects it would be governed by the law of his domicile at the date of his death."
Finance Act 1949 28(2)
1 Citers
Re Levick [1963] 1 WLR 31
1963
ChD
Plowman J
Wills and Probate, Inheritance Tax
The proper law "regulating" the disposition of movable property for the purposes of section 28(2) was the law of the testator's domicile at the time of his death. Plowman J said that the term "regulate" was concerned with the material or essential validity of a will, rather than with its interpretation: "In the case of immovables it is lex situs (as the House of Lords held) and in the case of movables it is, in my judgment, the lex domicilii, from which the validity of the disposition stems. As Mr Foster conceded, if the law of South Africa had forbidden the disposition with which I am concerned, it could not have taken effect."
Finance Act 1949 28(2)
1 Cites
1 Citers
Gartside -v- Inland Revenue Commissioners [1968] AC 553; [1967] UKHL 6; [1968] 1 All ER 121; [1967] TR 309; [1968] 2 WLR 277
13 Dec 1967
HL
Lord Reid, Lord Wilberforce, Viscount Dilhorne
Trusts, Inheritance Tax
Before his death, the deceased had advanced sums to his sons. The House was asked whether they were liable to Estate Duty. Held: Lord Reid said: "no object of a discretionary trust has, as such, any legal right to or in the capital", although he may possess limited equitable rights against the trustee; "mere expectancy or hope of consideration by the trustee'" and "'In possession' must mean that the interest enables you to claim now whatever may be the subject of the interest. For instance, if it is the current income from a certain fund your claim may yield nothing if there is no income, but your claim is a valid claim, and if there is any income you are entitled to get it. But a right to require trustees to consider whether they will pay you something does not enable you to claim anything. If the trustees do decide to pay you something, you do not get it by reason of having the right to have your case considered: you get it only because the trustees have decided to give it to you."
Lord Wilberforce said that the circumstances in which a beneficiary under a discretionary trust may seek protection, and the nature of the protection he may expect to obtain, will depend on the court's discretion.
1 Citers
[ Bailii ]
