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.
Lord Davey said: ‘What then, are the rights of the appellants? Their right, and the only right which they could enforce adversely, is to have the administration completed and the residuary estate ascertained and realised, either wholly or so far as may be necessary for the purpose, and to have one-fourth of the proceeds paid to them.’
Judges:
Lord Herschell, Lord Davey
Citations:
[1897] AC 11
Jurisdiction:
England and Wales
Cited by:
Cited – Commissioner of Stamp Duties (Queensland) v Livingston PC 7-Oct-1964
A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New . .
Cited – Maye, Re (Northern Ireland) HL 6-Feb-2008
The defendant had admitted charges of obtaining property by deception. A confiscation hearing concluded that he had benefitted to a much greater extent than could be recoverd. Before then however both his parents had died, and he stood to inherit . .
Cited – Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased) ChD 12-Nov-2008
The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the . .
Cited – Dr Barnardo’s Homes National Incorporated Association v Commissioners for Special Purposes of the Income Tax Acts HL 14-Mar-1921
A testator had left his residuary estate to a charity. His estate included some investments. During the course of the administration of the estate, the executors received income from the investments on which tax had been deducted at source. The . .
Cited – Marshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 04 December 2022; Ref: scu.264632