Wyndham v Mackenzie [1918] HCA 46

Wyndham v Mackenzie [1918] HCA 46

Where a will directs that debts, funeral, and testamentary expenses are to be paid out of the residue, stamp duty and corpus commission are testamentary expenses and must be paid in full out of the residue, covering both real and personal estate. Such a direction constitutes a 'different disposition' under the Stamp Duties Act, negating the need to apportion expenses between realty and personalty.

Parties
Appellants: Wyndham and others; Respondents: Mackenzie and others
Jurisdiction
Australia
Judgment Date
23 August 1918
Procedural Posture
Appeal / Judgment
Outcome
appeal allowed
Legal Topics
Testamentary Expenses, Stamp Duty, Corpus Commission, Exoneration of Real Estate, Priority of Payments in Estate Administration
Administration and Probate Testamentary Expenses Stamp Duty Corpus Commission Exoneration of Real Estate Priority of Payments in Estate Administration

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Parties

Wyndham and others

Appellants

Mackenzie and others

Respondents

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether stamp duty and corpus commission are testamentary expenses under a will's direction to pay out of residue
  2. 2 Whether such direction is a 'different disposition' under sec. 56(3) of Stamp Duties Act 1898 (N.S.W.)
  3. 3 How to apportion payment between real and personal estate

Ratio Decidendi

Where a will directs that debts, funeral, and testamentary expenses are to be paid out of the residue, stamp duty and corpus commission are testamentary expenses and must be paid in full out of the residue, covering both real and personal estate. Such a direction constitutes a 'different disposition' under the Stamp Duties Act, negating the need to apportion expenses between realty and personalty.

Court Disposition

appeal allowed

Orders

  • The whole of the stamp duty and the whole of the corpus commission must be paid out of the residue of the estate as directed in the will. Decision of Supreme Court of New South Wales reversed.