Daly v Victoria [1921] HCA 41

Daly v Victoria [1921] HCA 41

The exemption from probate duty under sec. 130 of the Administration and Probate Act 1915 (Vic) only applies where the charitable bequest is of Victorian property or must necessarily be paid out of Victorian property. Since the testator's will did not require that the Victorian assets be used for the bequests, and the executors could have paid them out of New South Wales assets, the bequests were not exempt from Victorian probate duty.

Parties
Plaintiffs: Tietyens and William Percy Daly; Defendant: State of Victoria
Jurisdiction
Australia
Judgment Date
17 October 1921
Procedural Posture
Special Case for Opinion of the Court / Judgment
Outcome
judgment for the defendant
Legal Topics
Administration of Estates, Charitable Bequests, Probate Duty Exemption
Succession Law Probate Taxation Law Administration of Estates Charitable Bequests Probate Duty Exemption

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Parties

Tietyens and William Percy Daly

Plaintiffs

State of Victoria

Defendant

Procedural Posture

Special Case for Opinion of the Court / Judgment

Legal Issues

  1. 1 Is probate duty payable under the Administration and Probate Act 1915 (Victoria) in respect of public charitable bequests when Victorian assets are not specifically allocated to the charities?

Ratio Decidendi

The exemption from probate duty under sec. 130 of the Administration and Probate Act 1915 (Vic) only applies where the charitable bequest is of Victorian property or must necessarily be paid out of Victorian property. Since the testator's will did not require that the Victorian assets be used for the bequests, and the executors could have paid them out of New South Wales assets, the bequests were not exempt from Victorian probate duty.

Court Disposition

judgment for the defendant

Orders

  • Judgment for the defendant with its costs of defence and the costs of the special case.