SUCCESSION AND PROBATE DUTIES ACT 1892-1969 · PDF fileSUCCESSION AND PROBATE DUTIES ACT 1892-1969 ... 1 Eliz. 2 No. 15 Succession and Probate Duties Acts Amendment Act of 1952,

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SUCCESSION AND PROBATE DUTIES ACT 1892-1969

Succession and Probate Duties Act, 1892, 56 Vic. No. 13 Amended by

Criminal Code Act, 1899, 63 Vic. No.9 Succession and Probate Duties Act of 1904, 4 Edw. 7 No. 17 Succession and Probate Duties Acts Amendment Act of 1906, 6 Edw.

7 No. 13 Stamp Act Amendment Act of 1918, 9 Geo. 5 No. 11 Succession and Probate Duties Acts Amendment Act of 1918, 9 Geo. 5

No. 16 Succession and Probate Duties Acts Amendment Act of 1920, 10 Goo.

5 No. 29 Finance Act of 1930, 21 Geo. 5 No. 19 Succession and Probate Duties Acts Amendment Act of 1931, 22 Geo.

5 No. 49 Succession and Probate Duties Acts Declaratory and Amendment Act

of 1935, 26 Geo. 5 No. 27 Succession and Probate Duties Acts Amendment Act of 1948, 12 Goo.

6 No. 23 Gift Duty Acts and Other Acts Amendment Act of 1952, 1 Eliz. 2 No. 15 Succession and Probate Duties Acts Amendment Act of 1952, 1 Eliz.

2 No. 37 Succession and Probate Duties Acts Amendment Act of 1955, 4 Eliz.

2 No. 33 Succession and Probate Duties Acts Amendment Act of 1958, 7 Eliz.

2 No. 45 Succession and Probate Duties Acts and Another Act Amendment Act

of 1961, 10 Eliz. 2 No. 50 Succession and Probate Duties Acts Amendment Act of 1962, No. 34 Succession and Probate Duties Acts and Another Act Amendment Act

of 1963, No. 29 Succession and Probate Duties Act Amendment Act 1968, No. 26 Succession and Probate Duties Acts Amendment Act 1969, No. 13

An Act for Granting to Her Majesty Duties on Succession to Property and Probate Duties

[Assented to 4 October 1892]

Most Gracious Sovereign,-Preamble. We, your Majesty's most dutiful and loyal subjects,

the Members of the Legislative Assembly of Queensland in Parliament assembled, have, towards raising the necessary supplies for defraying

748 SUCCESSION AND PROBATE DUTIES Vol. Hi

your Majesty's public expenses, and making a permanent addition to the public revenue, freely and voluntarily resolved to grant unto your Majesty the duties hereinafter mentioned, and do humbly pray your Majesty that it may be enacted; And be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:-

1. Shod title. This Act may be cited as "The Succession and Probate Duties Act, 1892."

Collective title conferred by Act of 1969, No. 13 s. 3 (2).

2. Commencement of Act. This Act shall be taken to have come into operation on the seventh day of September, one thousand eight hundred and ninety-two, and shall take effect accordingly.

The Succession Duties Act of 1886 (50 Vic. No. 12) still applies to the estates of persons who died before 7 September, 1892, s. 59, post.

3. Interpretation. Compare 16 & 17 Vic. c. 51, s. 1. In the construction and for the purposes of this Act,-

The term "Minister" means the Treasurer or other Minister of the Crown charged for the time being with the administration of this Act;

The term "Real Property" includes all freehold, leasehold, and other hereditaments, whether corporeal or incorporeal, in Queensland, and all estates in any such hereditaments;

The term "Personal Property" does not include leaseholds, but includes money payable under any engagement, and all other property not comprised in the preceding definition of real property;

The term "Property" alone includes real property and personal property;

The term "Succession" denotes any property chargeable with duty under this Act;

The term "Trustee" includes an executor and administrator, and any person having or taking on himself the administration of property affected by any express or implied trust;

The term "wife" includes a woman who has been divorced, whether before or after the passing of "The Succession and Probate Duties Acts and Another Act Amendment Act of 1963," by or from her husband if she has not re-married before the time of his death and if she is at the time of his death receiving or entitled to receive maintenance from him.

As amended by Act of 1904, 4 Edw. 7 No. 17, s. 3; Finance Act of 1930, s. 16 (as from 1 July 1930); Act of 1963, No. 29, s. 4.

Act referred to: Succession and Probate Duties Acts and Another Act Amendment Act

of 1963, not reprinted.

The statute 16 & 17 Vic. c. 51, referred to in the marginal notes of this Act, is the Succession Duty Act, 1853 (Imperial), for which see 9 Halsbury'll Statutes of England, 2nd ed., p. 267. That Act is followed closely throughout a great part of this Act, and the presumption arises that the Legislature intended tr.is Act to be construed in conformity with decisions given on the English Act prior to the enactment of this Act, Harding v. Commissioners of Stamps, [1898] A.C. 769; 9 Q.L.I. 134; Re Heaslop, [1912] St. R. Qd. 277, at p. 285.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.I-4 749

As to tenitorial limitations, see title CONSTITUTION, Vol. 2, at pp. 679 and 732.

"Real Property"; "Personal Property"-As to levy of duty on certain real property as personalty, and levy of duty on personalty subject to trust far investment in real property, see ss. 24, 25.

All property situated in Queensland is chargeable with duty, irrespective of the domicile of the testator or intestate, Succession and Probate Duties Act 1892 Amendment Act 1895-1969. s. 2. p. 803. post.

As to "money payable under any engagement", see Attorney-General v. Montefiore (1888), 21 Q.B.D. 461 (cavenant to transfer stocks).

See also 21 English and Empire Digest (Rp!.), p. 153.

HSuccessian"-For what constitutes a successian, see alsO' ss. 4-10H; Succession and Probate Duties Act 1892 Amendment Act 1895-1969, s. 2, p. 803, post; Succession and Probate Duties Act 1904-1969, s. 4, p. 810. post. For rates of duty, see s. 12, post.

See 21 English and Empire Digest (Rp!.), p. 132.

General-HIt seems lawful to approach the construction of a provision in the Succession Duty Act with the expectation that the subject matter of any levy intended will be benefits accruing or occurring on a death; at least, i:l the absence of clear words excluding such limitation", Commissioner of Stamp Duties v. Beak, [19311 St. R. Qd. 219, at p. 252; 46 C.L.R. 585. As to' distinction between succession duty and probate duty, see the Preliminary Note.

The following epitome of the provisions of these Acts affords a guide -to their contents: successions (Succcs+m and Probate Duties Act 1892-1969, 5S. 4-lOH); administration (5. 11); registration of duty as charge on land (s. 11A); probate or letters of administration to be obtained (s. 11 B); duties and rates (S5. 12-18); time for payment of duty (ss. 20, 21); miscellaneous cases (ss. 22-38); powers of the Commissioner (ss. 39-42); duty charged on successions (ss. 43-45); liability for duty (s. 46); returns, assessments and payment of duty (55. 47-54); duty on probates and letters of administration (ss. 55, 55A); regulations (s. 56); evidence (s. 56A); notices (s. 57); acquisition of undervalued property (s. 58); repeal of former legislation (s. 59); situation of property, duty on certain shares in companies (Succession and Probate Duties Act 1892 Amendment Act 1895-1969, s. 2, p. 803, post); probate not to issue till duty paid (ibid., s. 3); compounding duties (ibid., s. 4); gifts within two years before death (Succession and Probate Duties Act 1904-1969, s. 4); settlements (ibid., s. 5); interest on duty (ibid., s. 8).

4. What dispositions and devolutions of property shall confer successions. 16 & 17 Vic. c. 51, s. 2. Definition of the terms "successor," "predecessor." Every past or future disposition of property, by reason of which any person has become or shall become beneficially entitled to any property or the income thereof upon the death of any person dying after the time appointed for the commencement of this Act, either immediately or after any interval, either certainly or contingently, and -either originally or by way of substitutive limitation, and every devolution by law of any beneficial interest in property, or the income thereof, upon the death of any person dying after the time appointed for the commencement of this Act, to any other person, in possession or expectancy, shan be deemed to have conferred or to confer on the person entitled by reason of such disposition or devolution a "succession"; and the term "successor" shall denote the person so entitled; and the term "predecessor" shall denote the settlor, testator, obligor, ancestor, or other person from whom the interest of the successor is or shall be derived.

S",,, ilpfinitin" "f "s1)<xession" in s. 3.

750 SUCCESSION AND PROBATE DUTIES Vol. 16

"Disposition"-The disposition need not be one made by the person on whose death the beneficial interest accrues, Commissioner of Stamp Duties v. Beak, [1931] S1. R. Qd. 219. The successor must have become wholly entitled by reason of the disposition, Commissioner of Stamps v. Overell, [1932] St. R. Qd. 230; Lord Advoeate v. Fleming, [1897] A.C. 145; [1895-9] All E.R. Rep. 218; Re Isles, [1933] St. R. Qd. 338.

The term "disposition" extends to all modes of disposing of property, Northumberland (Duke) v. Attorney-General, [1905J AC. 406 ("It is clear that the terms 'disposition' and 'devolution' must have been intended to comprehend and exhaust every conceivable mode by which property can pass, whether by act of parties or by act of law", at pp. 410-411), whether by will, deed or settlement ill:cr vivos (Attorney-General v, Fitzjohn (1857), 2 H. & N. 465, at p, 473). It includes a sale, Northumberland (Duke) v. Attorney-General, supra, at p, 411 and Fryer v. Morland (1876), 3 Ch. D. 675; a covenant to transfer stock and shares, Attorney-General v. Montefiore (1888), 21 Q,B.D. 461; and sums payable under insurance policies, Attorney-General v. Abdy (1862), 1 H. & C. 266. But a mere covenant to pay money is not a disposition within this section, Re Isles, [1933J St. R. Qd. 338; but see Simms v. Registrar of Probates, [1900] AC. 323. Payment by a husband of a premium on a policy of insurance on his life effected by his wife was held not to be a disposition of property making the proceeds of the policy a succession arising on his death, Commissioner of Stamps v. Overell, [19321 St. R. Qd. 230. As to an imperfect gift inter vivos perfected by the appointment of the donee as executor, see Re Weaver, [1916] S.A.L.R. 167. See also 21 English and Empire Digest (Rp!.), p. 135; 15 Halsbury's Laws of England, 3rd ed., p. 87; notes to s. 4 of Succession and Probate Duties Act 1904-1969, p. 810, post.

In Re Barnett, [1949] St. R. Qd. 225, the Full Court held that a pension payable to the widow of a bank officer (resident and domiciled all his life in Queensland) out of a provident fund constituted by regular payments from members of the staff was a disposition whereby she became beneficially entitled to property within the meaning of this 'Section, not a policy of insurance within the meaning of s. lOe; that the fund was not Queensland property and the transaction was not governed by Queensland law; and, by a majority, that the sum which represented the value to the widow of her benefits from the fund should be taken into account under s. 12 (2), in determining the rate of succession duty payable on the estate of the deceased.

See as to succession, Re Martin, [1953] St. R. Qd. 37, where the Full Court followed and applied Re Munro; Commissioner oj Stamp Duties v. Queensland Trustees, [1949] St. R. Qd. 217, and Burrell and Kinnaird v. Attorney-General, [1937] A.C. 286.

See Queensland Trustees Ltd. v. Commissioner of Stamp Duties, [1957] St. R. Qd. 155; [1957] AL.R. 1, where the High Court of Australia applied the principle of estoppel against the Crown in holding that there was no succession.

See also White v. Commissioner oj Stamp Duties, [1968] Qd. R. 140.

Situation of Property-This section did not originally extend to personalty of a deceased person domiciled out of Queensland, Harding v. Commissioners oj Stamps. [1898] A.C. 769; 9 Q.L.J. 134, but the Succession and Probate Duties Act 1892 Amendment Act 1895-1969, s. 2 (first paragraph), p. 803, post, has extended it to render dutiable all property situated within Queensland irrespective of domicile of the predecessor. The personal estate wherever situated of a person domiciled in Queensland is liable to duty, Re Tyson; Ex parte Queensland Trustees Ltd. (1900). 10 Q.L.J. 34; Re Tyson; R. v. Queensland Tfllstees Ltd. (1900), 10 Q.L.J. 151. Debts secured by mortgage of land outside Queensland are part of the dutiable estate of a deceased domiciled in Queensland, ibid. For principles for determining domicile. see ibid .. 7 Halsbury's Laws of England, 3rd ed., p. 14. A change of domicile must be clearly proved, Re Enright, [1939] Q.W.N. 12.

"Beneficially entitled"-A successor must be entitled for his own benefit as distinct from entitled as a trustee, Wilcox v. Smith (1857), 4 Drew. 40, at p. 51, or having a mere legal interest, Re Peyton (1861), 7 H. & N. 265.

"Upon the death of any person"-The test is not whether the beneficial interest vests by reason of the death but whether it vests upon the death as a point in time; the interest must vest "by reason of" the disposition, Commissioner of Stamp Duties v. Donaldson (1927), 39 C.L.R. 539.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.4-5 751

The death may be that of a person whose own interest was derived from another disposition, Re Jenkinson (1857), 24 Beav. 64; Attorney-General v. Yelverton (1861),7 H. & N. 306; Attorney-General v. Gardner (1863), 1 H. & C. 639. A remainder arising upon death of a life tenant constitutes a succession, Re Hann, deed., [1906] St. R. Qd. 330; [1906] Q.W.N. 61, cited under s. 59. Where contingent interests given by a will fall back into residue upon the death of the beneficiary, a succession arises upon the death of the beneficiary with respect to the property so falling into residue, Re Goggs, deed., [1909] St. R. Qd. 27; [1909] Q.W.N. 11.

A succession arising under a gift within two years before death is deemed to be conferred upon death. See Succession and Probate Duties Act 1904-1969, s. 4, p. 810, post; Re Archibald, deed., [1909] St. R. Qd. 160; [1909] Q.W.N. 24.

The estate's of persons dying before the commencement of this Act, 7 September, 1892, are excluded from this Act (see s. 2; Re Whish, B.C.R., 11 June, 1894), and Succession Duties Act of 1886, 50 Vic. No. 12 remains in force with respect to them, s. 59.

The words "after any interval" should be read with s. 10 (1). "Every devolution by law"-To devolve means to pass from a person dying

to a person living, Parr v. Parr (1833), 1 My. & K. 647. As to the distinction between disposition and devolution, see Saltoun (Lord) v. Advocate-General (1860), 3 Macq. 659 (Scottish deed of entail), and Zetland (Earl) v. Lord Advocate (1878),3 App. Cas. 505.

"Successor"; "Predecessor"--See 15 Halsbury's Laws of England, 3rd ed. pp. 90, 91; 21 English and Empire Digest (Rpl.), pp. 141, 145.

4A. Disposition of unpaid consideration for prior transaction. Where, in the case of a disposition of property within the meaning of "The Gift Duty Acts, 1926 to 1961," made, whether before, on or after the date of the enactment of this section, for a consideration in money not payable in full upon the making of such disposition, the disponor dies before the payment in full of such consideration and by reason thereof the disponee or any other person becomes beneficially entitled to the consideration or to any part thereof unpaid at the date of such death, the value of such succession shall be deemed to be the monetary value which the amount of the consideration or part thereof to which the disponee or other person became so beneficially entitled would have had if it were payable in full immediately prior to the death of the disponor.

With respect to the duties payable under this Act in respect of the grant of probate or letters of administration the value of such unpaid amount shall be the monetary value which it would have if it were payable at the date of the application for the grant.

Inserted by Act of 1961, 10 £liz. 2 No. 50, s. 4. Act referred to:

Gift Duty Act 1926-1969, title GIFT DUTY, Vol. 6, p. 445.

See Gift Duty Act 1926-1969, s. 2, and notes thereto, title GIFT DUTY, Vol. 6. p. 445.

5. (1) Joint tenants taking by survivorship to be deemed successors. 16 & 17 Vic. c. 51, s. 3. When any persons, at or after the time appointed for the commencement of this Act, have any property vested in them jointly, by any title not conferring on them a succession, any beneficial interest in such property accruing to any of them by survivorship shall be deemed to be a succession; and every person to whom any such interest accrues shall be deemod to be the successor; and the person upon whose death such accruer takes place shall be deemed to be


predecessor; and when any persons, after the time appointed for the commencement of this Act, take any succession jointly, they shall pay the duty, if any, chargeable thereon by this Act in proportion to their respective interests in the succession; and any beneficial interest in such succession, accruing to any of them by survivorship, shall be deemed to be a new succession, derived from the predecessor from whom the joint title was derived.

In any other case in respect of a succession by survivorship to property held jointly, duty shall be paid as a succession thereto derived from the person from whom the joint title was derived.

(2) Joint contribution to a fund with survivorship. Whe~e persons contribute jointly to any fund and enter into an agreement or arrangement whereby the income from the fund or from any investment thereof is shared during their joint lives, and, upon the death of any one or more of such persons, such fund or investment devolves upon the survivors or survivor, duty shall be paid upon each such death in respect of the accretion of interest in such fund or investment to the survivors or survivor upon the fair and reasonable value thereof at each such death as a succession derived from such person so dying as the predecessor.

Where persons contribute jointly to any fund and enter into an agreement or arrangement whereby the income from the fund or from any investment thereof is shared during their joint lives, and, pursuant to such agreement or arrangement upon the death of anyone or more of such persons, such fund or investment is taken over by the survivors or survivor at a value fixed by such agreement or arrangement or upon Ll}e basis of a value disclosed in any balance-sheet, duty shall he paid upon each such dcath in respcct of such fund or investment upon the fair and reasonable value of the deceased's share therein, after deducting the value fixed or disclosed as aforesaid, as a succession derived from the deceased as predecessor.

(3) Joint purchases of property with remainder to survivors. Where any property is purchased jointly and conveyed to the purchasers for life with remainder to the survivor in fee-simple, duty shall be paid upon the death of each tenant for life in respect of the accretion of interest in such property to the survivors or survivor upon the fair and reasonable value of the deceased's interest at his death as a succession derived from him as the predecessor.

As amended by Act of 1918,9 Geo. 5 No. 16, s. 2. As to bank deposits in joint names, see s. lOB.

6. General powers of appointment to confer successions. 16 & 17 Vic. c. 51, s. 4. When ailY person has a general power of appointment, under any disposition of property taking effect upon the death of any person dying after the time appointed for the commencement of this Act, over property, he shall, in the event of his making any appointment thereunder, be deemed to be entitled, at the time ui ;,;s eX(;fcj~;i,g such power, to the property or interest thereby appoill(eu dS a sllccession derived from the donor of the power; and when any person has a limited power of appointment, under a disposition taking effect, upon any such death, over property, any person taking any property by the exercise of such power shall be deemed to take the same as a succession derived from the person creating the power as predecessor.


As to duty where the donee of a general power becomes liable to pay duty, see s. 26.

As to "taking effect on the death of any person", see Re Lovelace (1859), 4 De G. & J. 340 (where Turner, L.J., at p. 351, said: "the true construction of this section is to refer the words 'taking effect, etc.' to the power and not to the disposition of the property"); and Charlton v. Attorney-General (1879),4 App. Cas. 427 (where Lord Selborne said (p. 445) that the view of Turner, LJ., "may well admit of doubt").

As to when the power takes effect, see Re Lovelace, supra; Re Barker (1861). 7 H. & N. 109; and Attorney-General v. Mitchell (1881),6 Q.E.D. 548.

See also Registrar oj Probates v. Angas (1921), 29 c.L.R. 477.

7. Extinction of determinable charges to confer successions. 16 & 17 Vic. c. 51, s. 5. When any property is, at or after the time appointed for the commencement of this Act, subject to any charge, estate, or interest, determinable by the death of any person, or at any period ascertainable only by reference to death, the increase of benefit accruing to any person or persons upon the extinction or determination of such charge, estate, or interest, shall be deemed to be a succession accruing to the person, or the persolls if more than one, lhen entitled beneficially to the property or the income thereof, according to his or their respective estates or interests therein, or beneficial enjoyment thereof; and the person or persons from whom such successor or successors respectively have derived title to the property so charged shail be deemed to be the predecessor or predecessors, as the case may be.

This section should be read with ss. 8, 12 (2) (first proviso), 14 and 20. This section applies to the cesser of an annuity, Lord Advocate v. Macdollald (1862),24 Dun!. (Ct. of Sess.) 1175; Attorney-General v. Noyes (1881), 8 Q.B.D. 125. As to \vhether it applies to property which is subject to an estate for life, see 'yVilcox v. Smith (1857),4 Drew. 40, 55-56.

S(;C also 21 English and Empire Digest (Rpl.), p. 151.

8. Persons now bcneficiaHy entitled to real property subject to leases for life not liable to duty. 16 & 17 Vic. c. 51, s. 6. Provided that no person cntitied, at the time appointed for the commencement of this Act, to the immediate reversion i!l any real property expectant upon the determination of any lease for life, or fo. years determinable on life, shall be chargeable with duty in respect of such determination, in the event of the same occurring in his lifetime.

9. Dispositions a~companied by the reservation of a benefit to the grantor, etc., to conf~r successions. 16 & 17 Vic. c. 5], s. 7. When a disposition of properly, not being a bona fide sale, and not conferring an interest expectant on death on the person in whose favour the same is made, is accompanied by the reservation or assurance of, or contract for, any benefit to the grantor, or any other person, for any term of life or for any period ascertainable only by reference to death, such disposition shall be deemed to confer at the time appointed for the determination of such benefit an increase of beneficial interest in such property, as a succession equal in annual value to the yearly amount or yearly value of the benefit so reserved, assured, or contracted for on the person in whose favour such disposition is made.

As to gifts within two years before death, see Succession and Probate Duties Act 1904-1969, s. 4, p. 810, post.

"The object of section 7 (corresponding to s. 9) is plain enough. It is to prevent a man conveying the fee, reserving to himself a life interest. It excepts a bona fide sale, and of course the argument was, if all bona fide sales are excepted, why were the words 'not being a bona fide sale' put in? I am unable to say why. I cannot


read those words to mean anything more than that any attempt gratuitously to reserve a life interest to the original owner shaIl be deemed to create a succession", Fryer v. Morland (1876), 3 Ch. D. 675, at p. 687.

As to "bona fide sale", see Attorney-General v. Johnson, [1903] 1 K.B. 617; [1900-3] AIl E.R. Rep. Ext. 1078 (sum paid to charity in return for annuity), and Lord Advocate v. M'Kersies (1881), 19 Sc. L.R. 438 (assignment of interest in business in return for annuity).

A transaction in substance a family arrangement under which a deceased person had transferred to his children shares in a company controlled by himself and his children in return for increased remuneration as a director of the company was held to falI within the section, Re Stewart, deed., [1920] St. R. Qd. 207; [1920] Q.W.N.35.

A succession under this section is valued at a sum of money of the value of a perpetual annuity of the amount of the increase of beneficial interest, ibid. As to how this sum of money should be ascertained, see ibid.

10. Dispositions to take effect at periods depending on death, or made for evading duty, to comer successions. 16 & 17 Vic. c. 51, s. 8. When a disposition of property is made to take effect at a period ascertainable only by reference to the date of the death of a person dying after the time appointed for the commencement of this Act, such disposition shall be deemed to confer a succession on the person in whose favour the same is made.

(2) When a disposition of property purports to take effect presently, or under such circumstances as not to confer a succession, but by the effect or in consequence of any engagement, secret trust, or arrangement (whether or not such engagement, trust, or arrangement is legally enforceable), the beneficial ownership, use, or enjoyment of such property, or any rents, profits, dividends, or income derived therefrom, does not bona fide pass according to such disposition, but in fact is wholly or in part received, enjoyed, or used by the disponor until his death, or wholly or in part devolves to any person on death or at some period ascertainable only by reference to death, or is received enjoyed or used by any person on death, then such person shall be deemed to acquire the property as a succession derived from the person making the disposition as the predecessor.

The burden of proving that the beneficial ownership, use, and enjoyment of such property, or of the rents, profits, dividends, and income (if any) derived therefrom, wholly took effect in favour of and passed to such person immediately on such disposition of property shall lie upon him, and failing such proof he shall be deemed to have acquired the property as a succession derived as aforesaid.

(3) When a disposition of shares or other interest in a company(a) Purports to have been by way of immediate gift inter vivos;

or (b) Is alleged to be for good consideration, but such consideration

does not pass or is inadequate; and the disponee did not during the lifetime of the disponor derive a yearly benefit in respect of such shares or interest of not less than the income which the value of such shares or interest each year would have produced if prudently invested in authorised investments, within the meaning of "The Trustees and Executors Acts, 1897 to 1906," then such disponee shall be deemed to acquire such shares or interest as a succession derived from the disponor thereof as the predecessor.


Without limiting the meaning of the term "disposition," for the purposes of this provision an allotment of shares in a company shall be deemed to be a disposition, and the person at whose request or by whose direction the same were allotted shall be deemed to be the disponor.

The burden of proving-(a) That any consideration alleged for any disposition as aforesaid

actually passed from the disponee and was adequate; and (b) That the disponee of any shares or interest as aforesaid

derived a yearly benefit in respect of such shares or interest to the extent aforesaid,

shall lie upon the disponee, and failing such proof he shall be deemed to have acquired the shares or interest as a succession derived as aforesaid.

( 4) When a court of competent jurisdiction declares that in any disposition of property as aforesaid the disponee did not derive the whole benefit therefrom immediately to the entire exclusion of the disponor from any benefit whatever, or, in the case of a disposition of shares or other interest in a company as aforesaid, that the alleged consideration therefor did not actually pass as aforesaid or was inadequate, or that the disponee did not derive a yearly benefit as aforesaid during the lifetime of the disponor, it shall be lawful for the court to declare a succession to have been conferred on such disponee at such time and to such extent as the court may think fit; and such disponee shall be deemed to have acquired a succession accordingly derived from the disponor as the predecessor.

As amended by Act of 1918, 9 Geo. 5 No. 16, s. 3.

Act referred to: Trustees and Executors Acts, 1897 to 1964, title TRUSTEES AND

EXECUTORS.

As to commencement of subsections (2), (3) and (4), see Act of 1918, s. 3, p. 814, post.

As to notice to the Commissioner of settlements containing trusts to take effect upon death, see Succession and Probate Duties Act 1904-1969, s. 5, p. 810, post.

Subsection (1) must be so limited as not to include cases where the disposition has been made in consideration of the full value of the property paid in money or money's worth so as not to reduce the sum total of the estate estimated immediately before and immediately after the transaction and taking into consideration only the effect of the transaction, Re Beas/op, [1912] St. R. Qd. 277; [1912] Q.W.N. 45. But subsection (1) applies to cases where the disposition has been made merely in consideration of marriage, ibid.

Subsection (2) refers only to dispositions which are colourable merely, where the subjcct matter is not really disposed of in accordance with thc ostensible terms of the disposition. See Re Stewart, deed., [1920] St. R. Qd. 207, where the subsection was held not to apply to what was in substance a family arrangement, but was held to apply to a nomination of tmstees in respect of land subject to an understanding that such land should be leased to the settlor. There is no liability unless the engagement, secret trust or arrangement is made at the time the property is transferred to the disponee, Commissioner of Stamp Duties v. Beak, [1931] St. R. Qd. 219; 46 C.L.R. 585. The engagement or arrangement need not be express but may be tacit or implied; but it must be real, ibid. Mere family confidence and affection do not amount to such an engagement or arrangement, ibid., nor does large voting power and a right of veto under the constitution of a company amount to such an engagement or arrangement in respect of shares transferred, ibid. As to the effect of the second paragraph of subsection (2), see Commissioner of Stamp Duties v. Beak, supra.


As to subsection (2). see also Manson v. Commissioner of Stamp Duties, [1930] St. R. Qd. 295, H. Ct.

Subsection (3) IS confined to cases where a benefit results to the disponee on the disponor's death and therefore necessarily to cases where there is something in the nature of a reservation accompanying the gift and terminating on the death of the disponor, Commissioner of Stamp Duties v. Beak, [1931] St. R. Qd. 219; 46 C.L.R. 585. Subsection (3) does not necessarily apply because in any year dividends on the shares are less in amount than the income which would be earned if the capital value of the shares were invested in trustee investments; the receipts of the disponee must be reduced below the earnings of trustee investments by reason of some impediment or obstacle attached to the gift, Commissioner of Stamp Duties v. Beak, [1931] 46 C.L.R. 585; [1931] St. R. Qd. 219. For trustee investments s~c Trustees and Executors Acts, 1897 to 1964, s. 4, title TRUSTEES AND EXECUTORS.

lOA. When registered proprietor may be called on to prove beneficial ownership. Where any person dying after the first day of June, one thousand nine hundred and eighteen (herein called "the predecessor") had at his death the possession, use, or enjoyment of any property or of any interest therein, or was in receipt of the whole or any part of the rents, profits, dividends, or income of such property or interest, and some other person (herein called "the successor") was at the date of the death of the predecessor the registered proprietor, owner, or holder of such property or interest under the laws in force relating to the registration of title in such property or interest, the burden of proving that the entire beneficial ownership of such property or interest was, immediately prior to the death of the predecessor, vested in and enjoyed by the successor for the full estate and interest in respect of which he was registered as aforesaid shall lie upon the successor, and failing such proof he shall, notwithstanding such registration, be deemed to have acquired such property or interest from the predecessor as a succession on death.

Inserted by Act of 1918, 9 Geo. 5 No. 16, s. 4. See Re Stewart, deed., [1920] St. R. Qd. 207; [1920] Q.W.N. 35.

lOB. Deposits, etc., in joint names, etc. Upon the death of any person, after the first day of June, one thousand nine hundred and eighteen, all moneys held by any bank or financial institution upon any account, whether "and/or," or joint, or joint and several, on which the deceased had the right to operate or draw, shall be deemed to form part of his estate, and confer a succession on his death, except as to so much thereof as is proved to have been the exclusive property of any other person, immediately prior to such death.

The regulations may prescribe the mode and extent of proof that shall be required in order to establish the exemption of such moneys or any part thereof from being a succession on the ground that they are the exclusive property of any other person as aforesaid, and that in the absence of such proof to the satisfaction of the Commissioner no such exemption shall be allowed.

Inserted by Act of 1918, 9 Geo. 5 No. 16, s. 4; as amended by Finance Act of 1930, s. 17 (as from 1 July, 1930).

lOCo Moneys payable under life insurance policies. Notwithstanding anything contained in this Act or in any other Act or law, practice, or usage to the contrary, the moneys payable under any policy of insurance on the life of any person (whether such insurance was effected by the person himself or by any other person, and irrespective of any question as to who paid the premiums in respect of any such

SUCC'N & PROBATE DUTIES ACT 1892-1969 s5.10·10D 757

policy of insurance) shall on the death of the person on whose life such insurance was effected be deemed to be derived by the person beneficially entitled to such moneys by way of succession from the person on whose death such moneys become payable who shall be deemed to be the predecessor.

And it is hereby declared that the provisions of this section also apply to the moneys payable under any policy of life insurance which by instrument inter vivos has been assigned unless it be proved to the satisfaction of the Commissioner by the person in whose favour any such assignment may have been made that such assignment was for a bona fide adequate pecuniary consideration, and that all premiums paid in respect of the said policy since the date of the said assignment have been bona fide paid out of the proper moneys of such lastmentioned person and not otherwise.

Nothing in the aforesaid provisions shall apply and extend to the moneys payable under any policy of insurance effected on the life of any person in any case where it is proved to the satisfaction of the Commissioner that the wife of the person on whose life such insurance was effected is the person beneficially entitled on the death of the person on whose life such insurance was effected to the moneys payable under such policy and that such wife bona fide paid out of her own proper moneys all the premiums in respect of such policy of insurance.

Returns by insurance companies. A return of all or any moneys paid over in respect of any insurance payable upon the death of any person, where such policy is recorded in the books of a life assurance company in Queensland, or if recorded in the books or register of such company outside Queensland, if the premiums are paid to such company in Queensland, must be furnished to the Commissioner by such company.

Inserted by Act of 1918, 9 Geo. 5 No. 16, s. 4; as amended by Act of 1931, 22 Geo. 5 No. 49, s. 2 (i); Act of 1963, No. 29, s. 5.

Act of 1918, s. 1, directed that this section should commence on 1 June 1918.

See Re Barnett, deceased, [1949] St. R. Qd. 225; White v. Commissioner of Stamp Duties, [1968] Qd. R. 140.

The principle that the duty imposed by s. 12 is upon the actual value, not the nominal value, of the succession applies to a 'succession within this s. 10c as well as to a succession within s. 4. See White v. Commissioner of Stamp Duties, [1968] Qd. R. 140.

The Act, by this s. 1 Dc, subjects to tax only successions which occur by virtue of the law of Queensland. The section applies if the proper law of the contract of insurance under which the money was payable was the law of Queensland. So construed there is sufficient conn ex ion with Queensland to enable the legislature to impose the tax and the section is not ultra vires, ibid.

As to interpretation and territorial limitations, see Harding v. Commissioner of Stamps [1898] A.C. 769, and title CONSTITUTION, Vol. 2, at pp. 679 and 732.

10D. Foreign firm holding shares in Queensland company. Where a firm carrying on business in some country, possession, or place, other than Queensland, is the registered holder of shares or other interests in a company incorporated in Queensland under "The Companies Acts, 1863 to 1913," such firm shall for the purposes of this Act be deemed to be carrying on business in Queensland in so far as relates to the shares or other interests in such company held by the firm.

25


Upon the death of any member of such firm after the first day of June, one thousand nine hundred and eighteen, duty shall be paid in Queensland in respect of the value of such shares or other interests so held, in proportion to the interest held by the deceased in such firm, and to this extent the shares or other interests in the Queensland company shall be deemed to form part of the estate and effects of the deceased situated in Queensland for or in respect of which succession duty is payable in like manner as if such person were the registered holder of shares in such company.

No transfer or other dealing shall be recorded by the company nor dividends paid or credited in respect of such shares or other interests so held, where the death of a member in any such firm is within the knowledge of such company, until a certificate under the hand of the Commissioner is produced to the company showing that all duty has been paid or accounted for upon the death of a member in such firm in respect of such shares.

The provisions of section two of "The Succession and Probate Duties Act 1892 Amendment Act of 1895," as amended by "The Succession and Probate Duties Act of 1904," and by this Act, shall apply to such Queensland company, in so far as relates to the payment of the duty in respect of such shares or other interests so held, in the same manner as if such shares or other interests had been registered in the name of the deceased member of such firm in a branch register of such company, to the extent of his interest in the firm.

Inserted by Act of 1918, 9 Geo. 5 No. 16, s. 4, to commence on 1 June, 1918, ibid., s. 1. As to insertion of the word "Commissioner", see note to'S. 11. The words "by this Act" in the last paragraph refer to the Amending Act of 1918. See s. 19 of that Act.

Acts referred to: Companies Acts, 1863 to 1913; see now Companies Acts, 1961 to 1964,

title COMPANIES, Vol. 2, p. 31.

Succession and Probate Duties Act 1892 Amendment Act 1895-1969, p. 803, post.

Succession and Probate Duties Act 1904-1969, p. 809, post.

tOE. Principal matrimonial home. (1) In this section the term "principal matrimonial home" means-

(a) A dwelling-house; or (b) In the case of a block of fiats, a double-unit dwelling-house

or other multiple unit dwelling-house, a flat, unit or part for human habitation by a single family unit therein; or

(c) In the case of a structure containing shop or factory premises, a part of such structure for human habitation by a single family unit,

which immediately before the death of the predecessor, was used by the predecessor and his or her spouse as their principal matrimonial home.

Subject to this section the term includes the land appurtenant to the principal matrimonial home.

(2) Where the total value of the principal matrimonial home does not exceed twenty thousand dollars, the duty charged under this Act in respect of the succession to the principal matrimonial home derived by the spouse of the predecessor shall be deferred and shall not become payable until the date prescribed by this section.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.lOD-IOF 759

In every such case the deferred duty shall become and be payable and recoverable on the date when the spDuse-

(a) Disposes of his or her interest in the principal matrimonial home;

(b) Re-marries; or (c) Dies,

whichever event shall first happen.

(3) Where a succession mentioned in this section is included in and forms part of a succession to-

(a) A block of flats, a double-unit dwelling-house or other multiple unit dwelling-house, or a structure containing shop or factory premises; or

(b) Land used both as the principal matrimonial home and for other purposes,

then, for the purposes of this section, the duty charged under this Act in respect of the principal matrimonial home shall be a sum which bears to the total duty charged under this Act in respect of the whole of the succession the same proportion as the value of the principal matrimonial home (including in any case mentioned in paragraph (b) of this subsection so much of the land as, in the opinion of the Commissioner, is appurtenant to its use as such) bears to the value of the whole of the succession.

Inserted by Act of 1963. No. 29, s. 6. Decimal currency reference substituted pursuant to section 7 of Decimal

Currency Act of 1965.

lOF. Annuities and other interests. (1) Any annuity or other interest purchased or provided (whether before or after the date of commencement of the Succession and Probate Duties Acts Amendment Act 1969)-

(a) by or on behalf of a deceased person either by himself alone or in concert or by arrangement with any other person;

(b) by or on behalf of any person in concert or by arrangement with the deceased; or

(c) by any person who was at any time the employer of the deceased or who was acting on behalf of or in concert or by arrangement with the employer,

to the extent of the beneficial interest accruing or arising by survivorship or otherwise on the death of the deceased shall be deemed to be derived by the person to whom or in whose favour the beneficial interest accrues or arises by way of succession from the deceased who shall be deemed to be the predecessor.

(2) For the purpose of subsection (1) of this section-(a) where an annuity or other interest was purchased or provided

partly by the deceased and partly by any other person other than an employer of the deceased, so much of that annuity or other interest as was purchased or provided by the deceased shall be deemed to be an annuity or other interest to which subsection (1) applies;


(b) the deceased shall be deemed to have purchased or provided the proportion of any annuity or other interest that is equivalent to the total of the proportions contributed respectively-

(i) by the deceased; and

(ii) by his employer and by any person acting for or on behalf of the employer,

of the total amount in money or money's worth contributed towards purchasing or providing the annuity or other interest;

(c) where the deceased entered into a contract for a benefit, or which may result in a benefit, to a person not a party to the contract and the contract is enforceable by the personal representative of the deceased, then, notwithstanding that the contract is not enforceable by the person for whose benefit the contract was made, the benefit shall be deemed to be a beneficial interest purchased or provided by the deceased accruing or arising by survivorship or otherwise on the death of the deceased to or in favour of the person for whose benefit the contract was made;

(d) where any person who was at any time the employer of the deceased or who was acting on behalf of or in concert or by arrangement with the employer entered into a contract for a benefit, or which may result in a benefit, to a person not a party to the contract and the contract is enforceable by the person hereinbefore referred to by whom the contract was entered into then, notwithstanding that the contract is not enforceable by the person for whose benefit the contract was made, the benefit shall be deemed to be a beneficial interest purchased or provided by the deceased accruing or arising by survivorship or otherwise on the death of the deceased to or in favour of the person for whose benefit the contract was made;

(e) the extent of any beneficial interest accruing or arising by survivorship or otherwise on the death of the deceased shall be ascertained without regard to any interest in expectancy that the beneficiary may have had therein before the death of the deceased;

(f) where any beneficial interest which before the death of the deceased was defeasible becomes indefeasible on that death or at a time determined by reference to that death then, in determining the extent to which that beneficial interest accrued or arose by survivorship or otherwise on the death of the deceased, that beneficial interest shall be treated as if it belonged to the deceased at his death.

Inserted by Act of 1969, No. 13, s. 4.

Act referred to: Succession and Probate Duties Acts Amendment Act 1969, p. 819, post.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.lOF·IOH 761

lOG. Dispositions in recognition of services or pursuant to agreements with the deceased. Any property disposed of by any other person on or after the death of any person-

(a) under any disposition made voluntarily in recognition of services rendered by the deceased person as an employee of the disponor or as an employee of any other person; or

(b) under the terms of any agreement made by the deceased person for valuable consideration given by him providing for the disposition of such property on or after his death, whether or not such agreement is or was enforceable according to its terms by the person to whom such property was so disposed of,

shall be deemed to be derived by the disponee by way of succession from the deceased person who shall be deemed to be the predecessor.

Inserted by Act of 1969, No. 13, s. 4.

IOH. Exemption of certain superannuation benefits, etc. (1) Any benefit or sum payable consequent on the death of a person, by reason of the provisions of any statutory scheme shall be exempt from duty under this Act.

(2) Where the predecessor was not domiciled in Queensland at the time of his death, duty is not payable in respect of the succession to any benefit that is payable under one or more bona fide superannuation schemes.

(3) Where the predecessor was domiciled in Queensland at the time of his death, duty is not payable in respect of a succession by a successor hereinafter referred to in this subsection to any benefit (by annuity, lump sum payment or both) that is payable under one or more bona fide superannuation schemes, or such part of such a succession, the value of which does not exceed-

(a) in the case of a succession by the spouse of the predecessor, the value of an annuity of two thousand five hundred dollars during his or her life together with the value of an annuity of six hundred dollars payable until he or she attains the age of twenty-one years in respect of each child of the predecessor under that age less, in the case of such a child to whom a benefit is payable under any such superannuation scheme or schemes, the value of such a benefit, or the part thereof, that does not exceed the value of an annuity of six hundred dollars payable until the child attains the age of twenty-one years;

(b) in the case of a succession by a child of the predecessor under the age of twenty-one years, the value of an annuity of-

(i) where the predecessor shall have left him or her surviving a spouse, six hundred dollars;

(ii) where the predecessor shall not have left him or her surviving a spouse, nine hundred dollars,

payable to or in respect of the child until he or she attains the age of twenty-one years;


(c) in the case of a succession by a female person, being the mother of the predecessor or of his spouse or late spouse, as the case may be, or a sister or a child of the predecessor who, at the death of the predecessor-

(i) is a widow, spinster, or, her marriage having been dissolved or annulled, is not remarried, or is deserted by her husband; and

(ii) in the opinion of the Commissioner, is not receiving support from any male person or, where the predecessor is a male person, from any male person other than the predecessor,

and was during the period of one year immediately preceding his death, wholly engaged in keeping house for the predecessor and was not engaged during that period in other full-time or substantially full-time employment or occupation, the value of an annuity of nine hundred dollars payable to the female person during her life;

(d) in the case of a succession by a parent, brother or sister of the predecessor or of his spouse or late spouse, as the case may be, or a child of the predecessor in respect of whom the Commissioner is satisfied that at the death of the predecessor the successor-

(i) was permanently incapacitated for work; (ii) was in receipt of assistance from the predecessor; and

(iii) disregarding any invalid pension under the Social Services Act 1947-1968 of the Commonwealth as amended from time to time, the successor was wholly or substantially dependent on the predecessor,

the value of an annuity of nine hundred dollars payable to that person during his or her life.

( 4) The provisions of subsection (3) of this section do not entitle a person to exemption (wholly or in part) on more than one ground and where more than one ground is applicable to the circumstances of the case, the person to whom the benefit is payable shall elect which of such grounds shall apply to the case to the exclusion of any other ground.

(5) Where more than one succession to which subsection (3 ) of this section relates is derived from a predecessor by a successor referred to in that subsection those successions shall be aggregated for the purposes of subsection (3) of this section and shall be deemed to be one succession for the purpose of determining under the said subsection the extent to which duty is not payable thereon and the amount of the exemption shall be applied to each succession proportionately according to its value.

(6) Where the benefit constituting a succession by a child of the predecessor to which paragraph (b) of subsection (3) of this section relates is payable pursuant to the superannuation scheme or schemes to the spouse of the predecessor in respect of the child, the succession shall be deemed for the purposes of that subsection to be a succession derived from the predecessor by the spouse and the child shall be deemed not to have derived that succession.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.lOH-llA 763

(7) Benefits referred to in subsections (2) and (3) of this section on successions to which duty is not payable wholly or in part include any such benefit that is payable to any person by reason of the nomination made by the deceased whether during his lifetime or by testamentary instrument.

( 8) In this section-"statutory scheme" means a scheme of superannuation, retirement

benefit or pension created by and operated under any law of the Commonwealth or of any State or Territory of the Commonwealth;

"superannuation scheme" means a scheme of superannuation, retirement benefit or pension-

(a) created or arranged by an employer for the benefit of his employees and operated under the terms of an instrument of trust executed by or on behalf of the employer;

(b) created for the benefit of employees or self-employed persons and approved by the Commissioner for the purposes of this Act,

and a statutory scheme. Inserted by Act of 1969, No. 13, s. 5. Act referred to:

Social Services Act 1947-1969 (Commonwealth).

11. Duties to be deemed stamp duties, aud to be under the management of the Commissioner of Stamp Duties. Compare 16 & 17 Vic. c. 51, s. 9. The duties imposed by this Act shall be considered as stamp duties, and shall be under the care and management of the Commissioner of Stamp Duties, hereinafter called "the Commissioner," who, by himself and his officers, shall have the same powers and authorities for the collection, recovery, and management thereof, as he has under "The Stamp Act, 1894," or any Act amending or in substitution for that Act. And without prejudice to the provisions of that Act, and by way of additional remedy, all such duties, including any additional duty, may at any time be sued for and recovered in any court by the Commissioner suing in his official name. All penalties for breaches of this Act or any Act amending the same, or any regulations made thereunder, may be recovered by complaint in a summary way under "The Justices Acts, 1886 to 1909."

As amended by Act of 1904,4 Edw. 7 No. 17, s. 6, and (as from 1 June 1918) by Act of 1918,9 Geo. 5 No. 16, s. 5.

Acts referred to: Stamp Act 1894-1970, title STAMP DUTIES, Vol. 16, p. 313. Justices Acts, 1886 to 1968, title JUSTICES, Vol. 8, p. 105.

Throughout this Act the words "Commissioner of Stamp Duties" and "Commissioner" have been substituted for "Commissioners of Stamps" and "Commissioners" respectively, and words in the singular number relating thereto have been substituted for words in the plural number, as directed by Stamp Act Amendment Act of 1918, s. 6 (4), title STAMP DUTIES, Vol. 16, p. 418.

As to actions for recovery of duties, see also Crown Remedies Acts, 1874 to 1956, title CROWN, Vol. 4, p. 338.

llA. (1) Registration of duty as a charge. The Commissioner may register a memorandum of any duty assessed under this Act as a charge on the particular interest assessed with such duty, after having certified in writing that there are arrears of duty payable or that payment


of the duty has been deferred; and the Registrar of Titles or other proper officer shall register the charge accordingly, and give effect to it as if the certificate were an instrument of charge or encumbrance duly executed under the laws in force for the time being.

(2) Commissioner may apply for order to sell. If any duty is not paid by the final date fixed for the payment thereof under this Act, the Commissioner may apply to the Supreme Court or a judge thereof for an order that a sufficient portion of any property subject to the duty may be sold to pay the duty.

Powers of Court. Such Court or judge may grant the order applied for, and may fix the prices, terms, and conditions of the sale, and may make such order as to the costs of and consequent upon such application, proceedings, and sale as it or he thinks fit.

Application of proceeds. The moneys arising from such sale shall be applied-first, towards paying the costs and expenses, if so ordered, of and consequent upon any such application, proceedings, and sale; and, in the next place, towards the payment of the duty, and any additional duty due; the balance, if any, shall be paid to the person entitled, and in the case of an executor, administrator, or trustee shall be held or disposed of by him upon the same trusts as the property sold would have been held or disposed of:

Court may order as to surplus. Provided that such Court or judge may make any order that seems just as to such surplus moneys, and as to the disposal or investment thereof, and as to the person or persons to whom the same or the interest thereof shall be paid.

Inserted (as from 1 June 1918) by Act of 1918, 9 Geo. 5 No. 16, s. 6; as amended by Act of 1963, No. 29, s. 7.

As to insertion of the word "Commissioner", see note to s. 11. The charge is created by s. 43. See also ss. 43A-45.

HB. What property not to be administered until probate or administration granted. (1) Save as hereinafter provided, any person who takes possession of or in any manner administers any real property of a less tenure than an estate of freehold or any personal property whatsoever in Queensland or any interest therein belonging to any person who dies after the first day of July, one thousand nine hundred and eighteen, shall be liable to a penalty not exceeding two hundred dollars and also to a further penalty of ten dollars per centum on the amount of all probate and succession duty payable in Queensland, in respect of such property, unless within twelve months after the death of the deceased, or within four months after the determination of any action or dispute respecting the will or the right to administration which is not ended within eight months after the death of the deceased, probate or administration of such property has been granted in Queensland, or, if probate or administration of such property has been granted in any place out of Queensland, unless within twelve months after such grant is made such probate or administration has been resealed in Queensland in accordance with "The British Probates Act, 1898":

Provided that a judge of the Supreme Court, on being satisfied that the omission to obtain such grant of probate or administration or to have any probate or administration resealed was unavoidable or accidental or due to inadvertence, may, in his discretion, extend any time limited as aforesaid.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss. th·U 765

(2) This section shall not apply-(a) Where it is shown to the satisfaction of the Commissioner

that the total value of such property or interest does not amount to four hundred dollars; or that the total value of the estate of the deceased does not exceed three thousand dollars and the deceased was domiciled in Queensland and the successor is the wife or the lineal issue of the deceased;

(b) To any policy moneys which may be paid in accordance with section thirty-nine of "The Life Assurance Companies Act of 1901";

(c) To deposits not exceeding four hundred dollars in the Queensland Government Savings Bank;

(d) To the Public Curator; (e) To any person taking possession of or administering the

estate of a deceased member of any company registered under "The Companies Acts, 1863 to 1913," in so far as relates to the shares or other interest of such member recorded on the branch register of such company outside Queensland, or to any such company permitting any dealing with such shares or other interest as aforesaid without a grant of probate or administration or a reseal thereof as aforesaid.

Inserted (as from 1 June 1918) by Act of 1918, 9 Geo. 5 No. 16, s. 6; as amended by Act of 1952, 1 Eliz. 2 No. 37, s. 2.

Decimal currency references substituted pursuant to section 7 of Decimal Currency Act of 1965.

Acts referred to: British Probates Act, 1898, title SUCCESSION, p. 625. ante. Life Assurance Companies Acts, 1901 to 1962, title INSURANCE,

Vol. 7, p. 755. Companies Acts, 1863 to 1913; see now Companies Acts, 1961 to 1964,

title COMPANIES, Vol. 2, p. 31. As to insertion of the word "Commissioner", see note to s. 11. The probate or letters of administration is not to issue until duty is paid

or security given or the Commissioner certifies that no security is required, Succession and Probate Duties Act 1892 Amendment Act 1895-1969, s. 3, p. 805, pust.

An executor or administrator is liable for probate duty after the period provided by this section, Re Guest, deed., [19351 S1. R. Qd. 248, further cited under s. 55A.

12. Duties on successions. There shall be levied and paid to His Majesty in respect of every such succession as aforesaid, according to the value thereof at the time when the succession takes effect, the following duties, that is to say:-

( 1) If the value of the property derived from the same predecessor (as ascertained in accordance with the provisions of provision numbered (2) hereof) and passing upon any death whatsoever to any person or persons amounts in money or principal value to less than one thousand dollars, no duty. If the same amounts to $1,000 but does not exceed $2,000, 2 per cent. If the same exceeds $2,000 but does not exceed $5,000, 3 per cent. If the same exceeds $5,000 but does not exceed $8,000, 4 per cent. If the same exceeds $8,000 but does not exceed $10,000, 41 per cent. If the same exceeds $10,000 but does not exceed $12,000, 5 per cent. If the same exceeds $12,000 but does not exceed $14,000, 5t per cent.


If the same exceeds $14,000 but does not exceed $16,000, 6 per cent. If the same exceeds $16,000 but does not exceed $18,000, 6t per cent. If the same exceeds $18,000 but does not exceed $20,000, 7 per cent. If the same exceeds $20,000 but does not exceed $25,000, 7t per cent. If the same exceeds $25,000 but does not exceed $30,000, 8 per cent. If the same exceeds $30,000 but does not exceed $35,000, 8t per cent. If the same exceeds $35,000 but does not exceed $40,000, 9 per cent. If the same exceeds $40,000 but does not exceed $45,000, 9t per cent. If the same exceeds $45,000 but does not exceed $50,000, 10 per cent. If the same exceeds $50,000 but does not exceed $55,000, lOt per cent. If the same exceeds $55,000 but does not exceed $60,000, 11 per cent. If the same exceeds $60,000, 11 per cent., together with an additional

percentage upon the amount or principal value, of one-half of one per cent. for every $10,000 or part of $10,000 in excess of $60,000, but so that the total percentage shall not exceed 20 per cent. (2) For determining the rate of succession duty so payable, there

shall be aggregated so as to form one estate the value of all property, whether situated within or outside Queensland (after deducting therefrom all debts and liabilities (other than contingent liabilities) incurred by the deceased and due and owing by him at the time of his death, except any debt in respect of which there is a right to reimbursement from any other estate or person) and passing on such death, including all such dispositions of property, inter vivos or otherwise, as under "The Succession and Probate Duties Acts, 1892 to 1930," and any Act amending the same, are deemed to confer successions on the disponees, and all successions arising upon any death in respect of which the deceased is the predecessor or creator, and all property and successions which, by "The Succession and Probate Duties Acts, 1892 to 1930," and any Act amending the same, are deemed to constitute successions arising on such death:

Provided that where a beneficial interest in possession in any property or the income thereof on the determination of any charge, estate, or interest upon any death accrues after the first day of June, one thousand nine hundred and eighteen, the duty payable shall be ascertained as follows:-To the principal value of such interest when it falls into possession shall be added the value, as previously ascertained under any law relating to probate or succession duties, of the rest of the estate of which such interest formed part, and the sum so arrived at shall be the amount on which the rate of duty on such interest shall be fixed in accordance with the above table of duties.

Provided also that, for the purpose of determining the rate of succession duty as aforesaid, no allowance shall be made in respect of the value of any property comprised in any succession which is exempt from duty in accordance with any of the provisions of this Act or any other Act.

(2A) Notwithstanding the second proviso to provision (2) of this section, for the purpose of determining the rate of succession duty there shall be allowed as a deduction from the aggregated value of the property ascertained for the purposes of that provision-

(a) the value of any succession, or the part thereof, on which duty is not payable under subsection (2) or (3) of section 10H of this Act and that is included in the aggregated value;

SUCC'N & PROBATE DUTIES ACT 1892-1969 s.12 767

(b) in the case of any benefit or sum to which subsection (1) of section 10H of this Act relates, the value of that benefit or sum, or the part thereof, that would have been deductible under paragraph (a) of this subsection if the benefit or sum were not exempt from duty under this Act by the said subsection (1) or any Act other than this Act.

(3) In the assessment of succession duty-(a) An allowance shall not be made in the first instance for debts

due from the deceased to persons resident out of Queensland, except out of the value of any personal property of the deceased situated outside Queensland in respect of which duty under this Act is paid; and there shall be no repayment of such duty in respect of any such debts, except to the extent to which it is shown to the satisfaction of the Commissioner that the property of the deceased situated in the country or possession in which the persons reside, to whom such debts are due, is insufficient for their payment;

(b) Where a person domiciled outside Queensland at the time of his death owed a debt secured by mortgage, lien, or charge over property situated within Queensland, there shall be deducted from such property or estate in Queensland for the purposes of this Act such part only of such debt as exceeds the value of the property or estate of such person situated outside Queensland;

(c) Where a person (whether at the time of his death domiciled within or without Queensland) owed a debt secured by mortgage, lien, or charge over property situated outside Queensland, and also secured by mortgage, lien, or charge over property situated within Queensland, there shall be deducted from such property or estate in Queensland such part only of such debt as exceeds the value of the said property which is situated outside Queensland;

(d) Reasonable funeral expenses may be allowed, if not otherwise provided for, and also probate or administration duty paid in this State. The Commissioner may allow reasonable costs of obtaining a grant of probate or administration, but no allowance shall be made for the costs of an administration action or costs incurred by the successor in obtaining possession of or defending the title to the property or for Federal estate duty or for the costs incurred or which might be incurred in the conversion of all or any part of the property included in the succession by or on behalf of the successor.

( 4) Provided that-(a) In cases where the company concerned pays the duty as

prescribed under section two of "The Succession and Probate Duties Act 1892 Amendment Act of 1895" as amended by section nine of "The Succession and Probate Duties Act of 1904," or as prescribed under section eleven of the lastmentioned Act, the payment so made shall be deducted from the duty on the value of the shares or interest in such company held by the deceased at the time of his death as ascertained at the aforesaid rates:


(b) Where the total value of the estate of the deceased, in or out of Queensland, does not exceed five thousand dollars, and the predecessor was domiciled in the Commonwealth, and the successor is the wife or the lineal issue of the predecessor, the duty shall be charged at one-half of the rates aforesaid in respect of the succession coming to him or her;

(c) Where the total value of the estate of the deceased, in or out of Queensland, exceeds five thousand dollars, but does not exceed ten thousand dollars, and the predecessor was domiciled in the Commonwealth, and the successor is the wife or lineal issue of the predecessor, the duty shall be charged at two-thirds of the rates aforesaid in respect of the succession coming to him or her;

(d) Where such total value of the estate does not exceed three thousand dollars, and the predecessor was domiciled in the Commonwealth, and the successor is the wife or the lineal issue of the predecessor, no probate or administration or succession duty shall be payable;

(e) Where the successor is not a stranger in blood to the predecessor, but is other than the wife or husband or lineal issue of the predecessor, the rate shall be greater than that specified in the foregoing table for such estate by an addition of one-half of the rate therein specified, but so that such rate shall not exceed twenty-five per cent.;

(0 Where the successor is a stranger in blood to the predecessor, the duty shall be charged at double the rate specified in the foregoing table, but so that such rate shall not exceed twentyfive per cent.;

(g) Where the total value of the estate of the deceased, in or out of Queensland, does not exceed five thousand dollars, and the predecessor was domiciled in the Commonwealth and the successor is the wife or the lineal issue of the predecessor, but such successor is domiciled outside the Commonwealth, the duty shall be charged at five-eighths of the rates aforesaid in respect of the succession coming to him or hee

(h) Where the total value of the estate of the deceased, in or out of Queensland, exceeds five thousand dollars but does not exceed ten thousand dollars, and the predecessor was domiciled in the Commonwealth and the successor is the wife or lineal issue of the predecessor, but such successor is domiciled outside the Commonwealth, the dutv shall be charged at five-sixths of the rates aforesaid in res"pect of the succession coming to him or hee

(i) Where the total value of the estate of the deceased, in or out of Queensland, exceeds ten thousand dollars, and the predecessor was domiciled in the Commonwealth, ~md the successor is the wife or husbar.d or lineal issue of the predecessor, but such successor is domiciled outside the Commonwealth, the rate shall be greater than that snecified in the foregoing table for such ~state by an addition of o:le-fourth of the rate therein specified, but so that sllch rate shall not exceed twenty-five per cent.;

SUCC'N & PROBATE DUTIES ACT 1892-1969 s.12 769

(j) Where such total value of the estate does not exceed three thousand dollars, and the predecessor was domiciled in the Commonwealth and the successor is the wife or the lineal issue of the predecessor, but such successor is domiciled outside the Commonwealth, the duty shall be charged at one-fourth of the rates aforesaid in respect of the succession coming to him or her;

(k) Where the successor is not a stranger in blood to the predecessor but is other than the wife or husband or lineal issue of the predecessor, but such successor is domiciled outside the Commonwealth, the rate shall be greater than that specified in the foregoing table for such estate by an addition of seven-eighths of the rate therein specified, but so that such rate shall not exceed thirty per cent.;

(I) Where the successor is a stranger in blood to the predecessor and such successor is domiciled outside the Commonwealth, the duty shall be charged at two and a-half times the rate specified in the foregoing table, but so that such rate shall not exceed thirty per cent.

(5) Provided further that, notwithstanding the foregoing provisions of this section, where the predecessor was domiciled in the Commonwealth, and the successor is the wife or husband or a child under the age of twenty-one years of the predecessor, and such successor is domiciled in the Commonwealth-

(a) where the total value of the estate of the deceased, in or out of Queensland, does not exceed-

(i) in a case where the deceased leaves him or her surviving a spouse and one or more dependent children under the age of twenty-one years-the sum of the amount of fifteen thousand dollars and the amount of five thousand dollars for each such dependent child;

(ii) in a case where the deceased does not leave him or her surviving a spouse but leaves him or her surviving more than one dependent child under the age of twenty-one years, the sum of the amount of fifteen thousand dollars and the amount of five thousand dollars for each sucb dependent child in excess of one;

(iii) in any other case, fifteen thousand dollars, no succession duty shall be payable in respect of the succession coming to tbat wife or husband or child under the age of twenty-one years and the proportion of the probate or administration duty attributable to the value of the property subject to that duty included in that succession shall not be payable;

(b) where the total value of the estate of the deceased, in or out of Queensland, exceeds the applicable amount ascertained in the circumstances of the case in accordance with paragraph (a) of this provision with respect to which if not exceeded by the total value of the estate of the deceased it is provided that succession duty is not payable on the succession coming to that wife, husbard or child under the age of twenty-one-years (hereinafter in this paragraph referred to as the "said amount") but does not exceed the said amount by four thousand dollars, the following amount per centum:


(i) of the succession duty under this Act which, except for this paragraph (b) of this provision, would be charged in respect of the succession coming to that wife or husband or child under the age of twenty-one years; and

(ii) of the proportion of the probate or administration duty payable under this Act in respect of the estate in question which is attributable to the value of property subject to that duty included in that succession,

shall be rebated and not charged, namely one per centum for every forty dollars, or part of forty dollars, by which such total value is less than the sum of the said amount and the amount of four thousand dollars;

(c) where the sum of the amount of the succession duty payable in respect of successions coming to the wife or husband or child under the age of twenty-one years of the predecessor and the amount of the proportion of probate or administration duty payable under this Act in respect of the estate in question which is attributable to the value of property subject to that duty included in the successions in a case to which subparagraph (i) or (ii) of paragraph (a) of this provision is applicable exceeds the difference between the total value of the estate and the amount ascertained in the circumstances of the case in accordance with the provisions of paragraph (a) of this provision the succession duty payable on each such succession and the said proportion of probate or administration duty shall be reduced in the proportion that the amount by which the said sum exceeds the said difference bears to the said sum; and

(d) in paragraph (a) of this provision a "dependent child" means a child of the deceased in respect of whom the Commissioner is satisfied that at the time of the death of the deceased the child was not engaged in full-time employment and was wholly or substantially dependent for support on the deceased.

(6) Provided further that, notwithstanding the foregoing provisions of this section, where the total value of the estate of the predecessor in or out of Queensland, does not exceed six thousand dollars and the predecessor was domiciled in the Commonwealth, and is not survived by a spouse, and the successor is a child of or over the age of twenty-one years of the predecessor, and such successor is domiciled in the Commonwealth, no succession duty shall be payable in respect of the succession coming to that child and the proportion of the probate or administration duty attributable to the value of property subject to that duty included in that succession shall not be payable.

And provided further that no duty shall be payable under this Act(a) In respect of any succession, which, as estimated according

to the provisions of this Act1 is of less value than one hundred dollars in the whole;

(b) In respect of any succession, which, as estimated according to the provisions of this Act, does not exceed in value two hundred dollars and is given by any testator or testatrix to any past or present employee of his or hers, and is expressed

SUCC'N & PROBATE DUTIES ACT 1892-1969 5.12 771

by him or her in his or her will to be such a gift and save that gift the donee derives no succession from the estate of the testator or testatrix; or

(C) By any person in respect of any interest surrendered or extinguished by him before the seventh day of September, one thousand eight hundred and ninety-two.

In and for the purposes of this section and section lIB of this Act the terms "lineal issue" and "child" respectively include-

(a) A natural child of the predecessor; and

(b) An adopted child of the predecessor, that is to say a child adopted in this State by the predecessor, or by the predecessor and his or her spouse jointly, under and in accordance with the provisions of "The Infant Life Protection Acts, 1905 to 1935," or of "The Adoption of Children Acts, 1935 to 1952," or a child adopted elsewhere than in this State by the predecessor, or by the predecessor and his or her spouse jointly, under and in accordance with the provisions of the law relating to the adoption of children of the State or country where the adoption was made as in force therein at the time when the adoption was made.

As amended by Act of 1904, 4 Edw. 7 No. 17, s. 7; Act of 1918, 9 Geo. 5 No. 16, s. 7 (as from 1 June 1918); Act of 1920, 10 Geo. 5 No. 29, s. 2; Finance Act of 1930, 5S. 15 (3), 18; Act of 1935, 26 Geo. 5 No. 27, s. 3; Act of 1952, 1 Eliz. 2 No. 37, s. 3; Act of 1955, 4 Eliz. 2 No. 33, s. 2; Act of 1963, No. 29, s. 8; Act of 1968, No. 26, s. 2; Act of 1969, No. 13, s. 6.

Decimal currency references (except in provision (5)) substituted pursuant to section 7 of Decimal Currency Act of 1965.

As to commencement of amendments made by the Finance Act of 1930, ss. 15 (3), 18, see s. 15 (2) of that Act, 1936 Reprint, Vol. 4, p. 137.

As to insertion of the word "Co=issioner", see note to s. 11. Acts referred to:

Succession and Probate Duties Act 1892 Amendment Act 1895-1969, p. 803, pust.

Succession and Probate Duties Act 1904-1969, p. 809, post. Infant Life Protection Acts, 1905 to 1935; see now Children's

Services Act 1965-1970, 1965 Annual Volume, p. 517. Adoption of Children Acts, 1935 to 1952; see now Adoption of Children

Acts, 1964 to 1967, 1964 Annual Volume, p. 551. Further concessions are contained in ss. 12A-12D. All the provisions of the original s. 12 (as amended by Succession and Probate

Duties Act 1904-1969, s. 7) except the last paragraph were repealed so far as relates to the estates of persons dying after 1 June, 1918, and the estates of persons where a beneficial interest in possession in any property or the income thereof on the determination of any charge, estate or interest upon any death accrues on or after that date, and other provisions were inserted in lieu thereof by Succession and Probate Duties Acts Amendment Act of 1918, s. 7.

Payments from the Public Service Superannuation Fund are exempt, Public Service Superannuation Act 1958-1969, s. 83 (2), title PUBLIC SERVICE, Vol. 14, p.292.

Duty is a debt due to the Crown, s. 43. For the time when duty becomes payable, see ss. 20, 21. As to charge of duty on property, see ss. 43-45, and s. 1h.

All the property passing on the death of a predecessor must be aggregated in determining the rate of duty, subsection (2), supra; Re Blissett, [1903] St. R. Qd. 320; Archibald v. Commissioners oj Stamps (1909), 8 C.L.R. 739; [1909] St. R. Qd. 160; [1909] Q.W.N. 24; Re Hogarth's Will and Trusts (1895), 7 Q.L.J. (N.C.) 76. The rate of duty is determined upon the value of the succession at the time of the death, Re Goggs, deed., [1909] St. R. Qd. 27; [1909] Q.W.N. 11.

772 SUCCESSION AND PROBATE DUTIES Yol. 16

The value of a succession is to be estimated for purpose of determining the amount of duty as at the time when the succession takes effect but in the light of knowledge derived from subsequent events, Re Harding'S Will (1897), 7 Q.L.I. 126; reversed on other grounds, [1898] AC. 769; 9 Q.L.J. 134; III the Will of Tyson, [1907] St. R. Qd. 52; [1907] Q.W.N. 18. See also Weldon v. Union Trustee Co. of Australia Ltd. (1925), 36 C.L.R. 165; Commissioner of Stamp Duties v. Perpetual Trustee Co. Ltd. (1926), 38 C.L.R. 12; Re Luce, [1906] S.A.L.R. 121. A succession takes effect when the successor comes into possession or enjoyment of it. See ss. 20, 47; Re Goggs, deed., [1909] St. R. Qd. 27; [1909] Q.W.N. 11.

Shares are valued at their net value after taking liability for calls into consideration, Re Harding's Will (1897), 7 Q.L.J. 126, reversed on other grounds, [1898] AC. 769; 9 Q.L.J. 134. As to deduction of brokerage in determining value of shares, see Commissioner of Stamp Duties v. Lansdowne (1927), 40 C.L.R. 115. With respect to value of shares in a company under the articles of which restrictions are imposed on transfer, see Commissioners oj Inland Revenue v. Crossman, [1936] 1 All E.R. 762; Blackwood's Executors v. Commissioner for Stamps [1917], 17 S.R.(N.S.W.) 447; Macarthur Onslow v. Commissioner jar Stamps (1913), 13 S.R.(N.S.W.) 354; Commissioner of Stamp Duties v. Haynes, [1924] N.Z.L.R. 337; West Australian Trustee, Executor and Agency Co. v. Deputy Commissioner (1930), 33 W.A.L.R. 83.

The value of debts secured by mortgage of land is not their nominal value but their actual value, Re Harding's Will (1897), 7 Q.L.J. 126, reversed on other grounds, [1898] A.C. 769; 9 Q.L.J. 134.

Bank deposit receipts should be valued at the market value and not at their face value, Re Pearson (1894), 20 V.L.R. 484; affirmed, [1897] AC. 214.

As to valuation of a deceased person's interest in a partnership which bis executors have agreed to continue, see Re O'Brien, deed., [1920] St. R. Qd. 124; [1920] Q.W.N. 26.

See also 21 English and Empire Digest, (Rpl.), p. 166.

Section 31 does not apply to a case in which the first proviso to subsection (2) applies, Commissioner of Stamp Duties v. Lightoller (1922), 31 C.L.R. 382.

The expense of getting in and realizing the personal estate but not the real estate is deductible, Re Tyson; R. v. Queensland Trustees Ltd. (1900), 10 Q.L.J. 151. As to deduction of probate duty paid in another State, see Re Tyson; Ex parte Queensland Trustees Ltd. (1900), 10 Q.L.J. 34. As to deduction of costs of unsuccessful proceedings to uphold a will and of executor's commission, d. Byrne v. Commissioners of Stamps, [1913] St. R. Qd. 147; [1913] Q.W.N. 32, decided prior to the insertion of subsection (3). As to deduction of income tax in respect of a period before the predecessor's death but not assessed during his lifetime, cf. Commissioner of Stamps V. West Australian Trustee, Executor and Agency Co. Ltd. (1925), 36 C.L.R. 98; Commissioner oj Stamps v. West Australian Tl'llstee, Executor and Agency Co. Ltd. (1926), 38 C.L.R. 63; Re Brougham, [1926] S.A.S.R. 159.

Where a child has been adopted under the Adoption of Children Acts, 1964 to 1967, see ss. 28, 29, thereof, 1964 Annual Volume, p. 551.

As to legitimation of children, see Marriage Act 1961-1966, ss. 89-93 (Commonwealth) .

Natural children not legitimated, even though they are recognized by the father, are chargeable as strangers in blood to the father, A Ikillson v. A ndersoll (1882), 21 Ch.D 100.

See Re Barnett, [1949] St. R. Qd. 225, as to the rate of duty to be applied. As to domicile, see Re Enright. [1939] Q.W.N. 12. In Robertson v. Commissioner of Stamp Duties, [1958] Qd. R. 342, on a

reference, by consent, of points arising on the petition of the widow and the executors and trustees of a deceased partner for the determination of the proper value to be placed upon his one-twelfth interest in a grazing business, the Full Court held that the Commissioner of Stamp Duties was correct in determining the value thereof solely on the basis of the excess of the value of the assets (excluding good-will) over existing liabilities, i.e., as if there had been a winding-up at the date of the testator's death.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.12·12c 773

12A. (1) Where in the case of a person dying after the passing of "The Succession and Probate Duties Acts Amendment Act of 1952," succession duty as payable under section twelve of this Act has been paid on personal property situated in any part of the British Commonwealth of Nations other than this State at such death and it is shown to the satisfaction of the Commissioner that duty in respect of that death (not being duty or tax under any Act of the Commonwealth of Australia) has been lawfully paid on such personal property to the part of the British Commonwealth of Nations in which such property is situate at such death in consequence of the death of the said deceased, the Commissioner shall refund to the person who has paid the succession duty under section twelve of this Act on such personal property an amount equal-

(a) To the aforementioned duty so paid thereon to the part of the British Commonwealth of Nations in which it is situate; or

(b) To the succession duty so paid thereon under section twelve of this Act,

whichever amount is the lesser.

(2) Where the Commissioner is satisfied that, in such a case as is referred to in subsection one of this section, a refund will become payable he may, in lieu of requiring the payment to him of the full amount of the succession duty payable under section twelve of this Act, make a provisional allowance of the estimated amount of the refund subject to such conditions as he may impose or as may be prescribed by the regulations.

Inserted by Act of 1952, 1 Eliz. 2 No. 37, s. 4. Act referred to:

Succession and Probate Duties Acts Amendment Act of 1952, p. 818, post.

Further concessions are contained in 55. 12, 128-12D.

12B. Where the Commissioner is satisfied-(a) That the total value of the estate, in or out of Queensland,

of the predecessor, does not exceed ten thousand dollars;

(b) That the payment of the duties under this Act payable in respect of the succession coming to the wife or a child under the age of twenty-one years of that predecessor would cause hardship involving the sale or mortgaging of assets in that succession; and

(c) That apart from the succession that wife or child has no means of paying those duties or insufficient means of paying in full those duties,

the Commissioner may in his absolute discretion remit the whole or part of those duties.

Inserted by Act of 1955, 4 Eliz. 2 No. 33, s. 3. Decimal currency reference substituted pursuant to section 7 of Decimal

Currency Act of 1965. Further concessions are contained in ss. 12, 12A, 12c, 12D.

12c. (1) Where a successor-(a) Is entitled in possession to a succession (other than a limited

interest); or


(b) Is entitled to a succession in expectancy and the duty presumptively payable in respect of that succession in expectancy has been commuted and paid,

and the successor dies within three years of the date of the death of the predecessor from whom he derived that succession, a rebate shall, subject to this section, be allowed on the duty payable under this Act in respect of the successor's death.

(2) Subject to subsection three of this section, every such rebate shall be an amount equal to a percentage of the duty paid in respect of such succession determined in accordance with the following rules:-

(a) Where the successor died in the first year after the predecessor, seventy-five per centum;

(b) Where the said successor died in the second year after the predecessor, fifty per centum; and

(c) Where the said successor died in the third year after the predecessor, twenty-five per centum.

(3) Where the net value of the whole estate of the successor is less than the net value of the succession (other than any limited interest) derived by him by reason of the death of his predecessor, the rebate shall be a part of the amount fixed by subsection two of this section bearing the same ratio to the whole of that amount, as the net value of the whole estate of the successor bears to the net value of the succession (other than any limited interest) derived as aforesaid.

(4) No rebate shall be allowed in excess of the amount of the duty that WOUld, but for this section, be payable in respect of the successor's death.

(5) In this section "limited interest" includes every estate, interest or benefit which terminated during the lifetime or on the death of the person in whom it was vested.

(6) This section shall apply to cases where the successor dies on or after the passing of "The Succession and Probate Duties Acts Amendment Act of 1958," whether the predecessor died before, on, or after such passing.

Inserted, as s. 12B, by Act of 1958, 7 Eliz. 2 No. 45, s. 2; transposed and renumbered by Act of 1961, 10 Eliz. 2 No. 50, s. 5.

Act referred to: Succession and Probate Duties Acts Amendment Act of 1958, not reprinted.

Further concessions are contained in ss. 12-12B, 12D.

12D. Concession to residents in isolated areas of the State. (1) In this section-

"continuously resident" in relation to a predecessor, means that such predecessor resided in the isolated area for a period of not less than six months, or for periods aggregating not less than six months, in each and every one of the three years next preceding the date of his death.

The continuity of residence of a predecessor in the isolated area shall be deemed to have been not broken by absence therefrom necessary for the purpose of obtaining medical treatment or for hospitalisation;

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.12c,12D 775

"isolated area" means all that part of the State lying north of the 20th parallel of south latitude, excluding that portion east of 144 degrees of east longitude between the 16th and the 20th parallels of south latitude; and

"prescribed property" in relation to a predecessor, means any property prescribed by subsection six of this section.

(2) The Commissioner, subject to this section, may allow a rebate of the duty which, except for this section, would be charged under this Act in respect of any succession derived from a predecessor who, at the time of his death, was domiciled in the State.

(3) Such rebate shall be an amount equal to a percentage of the duty which, save for this section, would be charged in respect of the succession, which percentage shall be:-

(a) If the Commissioner is satisfied that the predecessor was continuously resident in the isolated area the aggregate of-

(i) twenty-five per centum; and (ii) an amount per centum which bears to twenty-five per

centum the same proportion as the gross value of prescribed property, if any, bears to the gross value of all property (including any prescribed property) of the predecessor; or

(b) In any other case, an amount per centum which bears to twenty-five per centum the same proportion as the gross value of prescribed property, if any, bears to the gross value of all property (including any prescribed property) of the predecessor.

(4) The Commissioner shall not allow a rebate of duty under this section in respect of any succession unless application for such rebate is made to the Commissioner by or on behalf of the successor within two years after the date when he, or any person in his right or on his behalf, becomes entitled in possession to the succession.

(5) A decision of the Commissioner under this section shall not be appealed against under section fifty of this Act, or otherwise called in question in any court, including the Supreme Court, and no writ of prohibition shall be issued or mandamus or injunction directed to the Commissioner by any court, including the Supreme Court, whether for wrongful exercise of his powers under this section or failure to exercise the same, or upon any other ground whatsoever relating to the powers of the Commissioner under this section.

(6) (a) In relation to a predecessor, any of the following property which, at the date of the death of the predecessor, was situated, or deemed by this subsection to have been situated, in the isolated area shall be prescribed property, namely:-

(i) Any real property save a mortgage over land; (ii) Live stock; (iii) Plant, machinery and any other personal property whatsoever

which was reasonably required (including as an amenity) for any purpose of or connected with establishing, developing, operating, managing, maintaining or carrying on in the isolated area any rural pursuit or any industry, business, undertaking or occupation;


(iv) Any mortgage over land situated in the isolated area securing a loan the term for repayment whereof is not less than five years and which was borrowed for acquiring or improving such land, or acquiring live stock which in relation to such land is prescribed property, or for effecting in relation to such land any of the purposes mentioned in subparagraph (iii) of this paragraph.

(b) For the purposes of this subsection:-

(i) Livestock shall be deemed to be situated on the land whereon such livestock are permanently depastured; but the term "livestock" does not include any livestock agisted or otherwise temporarily held or /iituated on land in the isolated area; and

(ii) In any case where any parcel of land is partly situated in the isolated area-

(a) if one-half or more in area of such parcel is situated within the isolated area, such parcel and all livestock permanently depastured thereon and all other prescribed property thereon shall be deemed to be situated wholly in the isolated area; or

(b) if less than one-half in area of such parcel is situated within the isolated area, one-half by value of the land comprised in such parcel and of all livestock permanently depastured thereon and of all other prescribed property thereon shall be deemed to be situated in the isolated area.

(c) (i) Shares held by a predecessor in a company shall be deemed to be prescribed property only to the extent hereinafter specified in this paragraph (c) and if, and only if, such company owned at the date of death of the predecessor property in the isolated area (hereinafter referred to in this paragraph (c) as "subject property") which, if it had been held by such predecessor, would have been prescribed property.

Property of a company in which another company holds shares shall not, in relation to that other company, be subject property.

(ii) If the whole of the property of such company was subject property, such shares shall be deemed to be wholly prescribed property.

(iii) If the company also owned property other than subject property and the value of the subject property was not less than ten per centum of the value of all the property (including the subject property) owned by that company, then as respects such shares-

(a) the extent of the prescribed property therein shall be deemed to be an amount which bears to the total value of the shares the same proportion as, in values respectively, the subject property bears to all the property (including the subject property) owned by that company; and

(b) the extent in value of the property therein, other than the prescribed property, shall be deemed to be the difference between the total value of the shares and the amount of the prescribed property therein.

SuCC'N & PROBATE DUTIES ACT 1892-1969 ss. 12D-15 777

(iv) If the company also owned property other than subject property and the value of the subject property was less than ten per centum of the value of all the property (including the subject property) owned by the company, such shares shall not be deemed to be prescribed property.

(v) For the purposes of this paragraph (c) the Commissioner may ascertain the value of all the property of the company (including the subject property) and the value of the subject property from the accounts and records of the company at a convenient balancing date as near as may be immediately prior to the date of death of the predecessor.

Inserted by Act of 1961, 10 Eliz. 2 No. 50, s. 6. Further concessions are contained in ss. 12-12c.

13. Provision as to married persons chargeable with succession or legacy duties_ Compare 16 & 17 Vic. c. 51, s. 11. When any person chargeable with duty under this Act in respect of any succession has been married to any wife or husband who would be chargeable with a lower rate of duty than himself or herself, then the person taking such succession shall pay in respect thereof the same rate of duty only as such his or her wife or husband would have been chargeable with if she or he had taken the same.

The reference to legacy duty in the headnote appears to be an error of inadvertence.

14. In what cases duty shall be payable when the successor is also the predecessor. 16 & 17 Vic. c. 51, s. 12. When any person takes a succession under a disposition made by himself, then, if at the date of such disposition he was entitled to the property comprised in the succession expectantly on the death of any person dying after the time appointed for the commencement of this Act, and such person dies during the continuance of such disposition, he shall be chargeable with duty on his succession, at the same rate as he would have been chargeable with if no such disposition had been made.

As amended by Act of 1918, 9 Geo. 5 No. 16, s. 8. On the question when a disposition is to be considered as having been made

by thl! person taking the succession, see Attumey-Generul Y. Sibthorp (1858), 3 H. & N. 424; Bruybrooke (Lord) Y. Attorney-General (1861), 9 H.L. Cas. 150; A lIol"lley-Generai Y. Floyer (1862), 9 H.L. Cas. 477; and Attorney-General Y. Smythe (1862), 9 H.L. Cas. 497 (resettlement by life tenant and remainderman); and, generally. 21 English and Empire Digest (Rpl.), p. 147.

"The first parts of sections 12 and 15 (corresponding to ss. 14 and 17) apply only to cases where the disponor or alienor would himself be chargeable to duty and do not apply to a case like the present where he would not", Attorney-General v. Gardl/l'/' (1863), I H. & C. 639 (interest derived from di1Ierent disposition to that under which successor takes).

15. Provision as to joint predecessors. 16 & 17 Vic. c. 51, s. 13. When the successor derives his succession from more predecessors than one, and the proportional interest derived from each of them is not distinguishable, the Commissioner may agree with the successor as to the duty payable; but if no such agreement is made, the successor shall be deemed to have derived his succession in equal proportions from each prcdccl:ssor, and shall be chargeable with duty accordingly.

As to insertion of the word "Commissioner", sec note to s. 11. See Atlorney-Gerzeral Y. Sibthurp (1858), 3 H. & N. 424, at p. 450. A, to compounding of duties, see also s. 39.


16. Duty on transmitted successions. 16 & 17 Vic. c. 51, s. 14. When the interest of a successor in personal property has, before he becomes entitled thereto in possession, passed by reason of death to any other successor or successors, then one duty only shall be paid in respect of such interest, and shall be due from the successor who first becomes entitled thereto in possession; but such duty shall be at the highest rate which, if every such successor had been subject to duty, would have been payable by anyone of them.

See Re Cooper and Allen's Contract (1876), 4 Ch. D. 802, at p. 826; [1874-80] AI! E.R. Rep. Ext. 2091.

For the scope of this section, see Re Long/and, [1942] St. R. Qd. 175.

17. Duties payable in respect of transferred interests. 16 & 17 Vic. c. 51, s. 15. When, at the time appointed for the commencement of this Act, any reversionary property expectant on death is vested, by alienation or other derivative title, in any person other than the person who was originally entitled thereto under any such disposition or devolution as is mentioned in the fourth section of this Act, then the person in whom such property is so vested shall be chargeable with duty in respect thereof as a succession at the same time and at the same rate at which the person so originally entitled would have been chargeable if no such alienation had been made or derivative title created.

When after the time appointed for the commencement of this Act it happens that a succession, before the successor becomes entitled thereto or to the income thereof in possession, becomes vested by alienation or by any title not conferring a new succession in any other person, then the duty payable in respect thereof shall be paid at the same rate and time at which it would have been payable if no such alienation had been made or derivative title created.

Payment of duty in case of acceleration of the succession. When the title to a succession is accelerated by the surrender or extinction of any prior interests, then the duty thereon shall be payable at the same time and in the same manner as such duty would have been payable if such acceleration had not taken place.

The words "not conferring a new succession" do not qualify the word "alienation", but only the words "any title", Woil'erton v. A ttomey-Golera/. [I R98] A.C. 535, overruling Re Cooper and A lien's Contract (1876), 4 Ch. D. 802, 824; [1874-80] All E.R. Rep. Ext. 2091.

A mere transfer by an expectant successor of his existing interest or an interest derived therefrom to some other person by way of an immediate gift inter ,"il'oS does not create a new succession, Wolverton v. Attorney-Genera/, supra; A [t(lnwvGencral v. Cecil (1870), L.R. 5 Exch. 263 (transfer of part of succession): Re Cooper and Allen's Contract, supra. For examples of transfers which create a new succession, see Solicitor-Gencral v. Law Reversionary Interest Society (1873), L.R. 8 Exch. 233 (purchase of reversion from remainderman: dcath of tenant for life); and Attorney-General v. Assheton-Smith, [1924] 2 K.B. 25 (resettlement providing for jointure).

"At the same rate and time . . . . if no such alienation had been made"These words mean "at the same rate as that to which the alienor wOllkl have been liable", Solicitor-General v. Law Rel'ersionary Interest Society (1873), L.R. 8 Exch. 233, where Cleasby, B., said, at p. 240: "It is not an unreasonable construction that the time of the alienation should fix the rate. because from that time the alienor has no connection with the property, and his hbtory is unimportant" .

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.16·20 779

"Surrender or extinction of any prior interests"-These words were considered in Inland Revenue Commissioners v. Harrison (1874), L.R. 7 H.L. 1 (cesser of annuity secured to tenant in tail on resettlement under disentailing assurance); Attorney-General v. Robertson, [1893) 1 Q.B. 293 (settlement to wife for life, then to husband, remainder in default of issue to wife absolutely; death of husband without issue held to give wife accelerated interest); Attorney-General v. Selborne (Earl), [1902) 1 K.B. 388 (destruction of settlement by exercise of power of appointment); Re Drury-Lowe's Marriage Settlement (1888), 21 Q.B.D. 466 (advance to expectant successor).

18. Succession subject to trusts for public purposes chargeable with duty. 16 & 17 Vic. c. 51, s. 16. When property becomes subject to a trust for any public purposes, under any past or future disposition, which, if made in favour of an individual, would confer on him a succession, there shall be payable in respect of such property, upon its becoming subject to such trusts, a duty at the same rate that is payable in respect of a succession when the successor is a stranger in blood to the predecessor; and it shall be lawful for the trustee of any such property to raise the amount of any duty due in respect thereof, with all reasonable expenses, upon the security of the property, at interest, and he shall have power to give effectual discharges for the money so raised.

When property becomes, under any past or future disposition, subject to a trust for any public body in Queensland (and in the particular case the Governor in Council determines that no probate or succession duty shall be payable) or subject to a trust for any charitable or educational institution in Queensland, or for such other public institution in Queensland as the Governor in Council may from time to time by Order in Council determine, and such disposition, if made in favour of an individual, would confer on him a succession, no probate or succession duty shall be payable in respect of such succession.

As amended by Act of 1906, 6 Edw. 7 No. 13, s. 2; Gift Duty Acts and Other Acts Amendment Act of 1952, s. 6 (1).

Section 6 (2) of the Gift Duty, etc., Act of 1952 provides as follows: "(2) The amendment made to "The Succession and Probate Duties

Acts, 1892 to 1948," by this section shall be deemed to have been so made on the first day of December, one thousand nine hundred and fifty."

On the interpretation of the second paragraph of this section, see Re Herbert Alfred Jones, [1946) St. R. Qd. 52.

19. (Repealed.) Repealed by Act of 1931, 22 Geo. 5 No. 49, s. 2 (ii).

20. Duties to be paid on the successor becoming entitled in possession; but in the case of outstanding interests, on the determination thereof. 16 & 17 Vic. c. 51, s. 20. The duty imposed by this Act shall be paid at the time when the successor, or any person in his right or on his behalf, becomes entitled in possession to his succession, or to the receipt of the income and profits thereof:

except that if there is any prior charge, estate, or interest, not created by the successor himself, upon or in the succession, by reason of which the successor is not presently entitled to the full enjoyment or value thereof, the duty in respect of the increased value accruing upon


the determination of such charge, estate, or interest shall, if not previously paid, compounded for, or commuted, be paid at the time of such determination;

Payment of dnties on real property, annuities, etc. and except that in case of real property or an annuity, or property hereby made chargeable as an annuity, the duties shall be paid by such instalments as are hereinafter directed or referred to:

Saving as to leases at rackrent. Provided that no duty shall be payable upon the determination of any lease purporting at the date thereof to be a lease at rackrent, in respect of the increase accruing to the successor upon such determination.

For the imposition of duty, see s. 12.

The Commissioner may enlarge the time for payment of duty, s. 39. Where a successor does not obtain the whole of his succession at the time of duty b~coming payable, see s. 37.

As to interest, ,ee Succession and Probate Duties Act 1904-1969. s. 8. p. !Ill, post. Discount may be allowed for duty paid in advance, s. 40, post.

As to the effect of a will conferring several interests in the same property on the same person, see Union Trustee Co. of Australia Ltd. v. Commissioner of Stamp Duties, [1922] St. R. Qd. 78; [1922] Q.W.N. 13; Re Sutherland, deed., i J '.)33] St. R. Qd. 356.

Increased value-The acquisition of the reversionary capital by a tenant for life of a settlement comprising a money fund is an increased benefit, A 1I0rneyGeneral v. Robertson, [1893] 1 Q.B. 293; see also Attorney-General v. Bedford (Duke), [1926] 2 K.B. 184.

As to the liability for duty on the increase in value, see Re Kidd and Gibbon's Contract, [1893] 1 Ch. 695 (duty payable on expiry of lease); Re Weston and Thomas's Contract, [1907] 1 Ch. 244 (duty payable on expiry of lease; the purchaser cannot be compelled to accept an indemnity).

21. Duty to be paid by four half-yearly instalments. Compare 16 & 17 Vic. c. 51, s. 21. Proviso as to death of successor before all instalments have become due. The duty payable by every successor, except as herein provided, in respect of real property, shall be paid by four equal half-yearly instalments, the first of such instalments to be paid at the expiration of six months next after the successor has become entitled to the beneficial enjoyment of the real property in respect whereof the same is payable, and the three following instalments at halfyearly intervals of six months each, to be computed from the day on which the first instalment becomes due; provided that if the successor dies before all such instalments have become due, then any instalments not due at his decease shall cease to be payable, except in the case of a successor who has been competent to dispose by will of a continuing interest in the property, in which case the instalments unpaid at his death shall be a continuing charge on such interest in exoneration of his other property, and shall be payable by the owner for the time being of such interest.

For "real property". see s. 3. As to payment of duty on annuities, see s. 28. Payments of duty are to be in cash or by money order cr bank draft. A

cheque does not constitute payment until collected, Succession and Probate Duties Regulations of 1918, reg. 22. Payment may be made to the C'1mmi,sioner at Brisbane or to any Deputy Commissioner at any Stamp Duties Office irrespective of the district in which the probate or letters ef administration has been issued, ibid., reg. 23.


As to "beneiicial enjoyment", see Attorney-General v. Sefton (1865), II H.L. Cas. 257.

The words "competent to dispose by will" were held in Attorney-Gelleral v. Hallett (ISS7), 2 H. & N. 368, to apply to the interest in the property and not to person~l capacity.

22. Cbarge of duty on property subject to beneficial leases. 16 & 17 Vic. c. 51, s. 25. When a successor, entitled to any real property subject to a lease by reason of which he is not presently entitled to the full enjoyment thereof, has not paid duty in respect of the full value of such property, he shall be chargeable with duty upon his interest in any fine or other consideration which may be received during his life for the renewal of any such lease, or the grant of any reversionary lease of the same property.

23. Duty payable by corporations, etc., taking real estate. Compare 16 & 17 Vic. c. 51, s. 27. When any body corporate, company, or society becomes entitled, as successors, to any real property, such body corporate, company, or society, or any trustee thereof, may raise the amount of any duty due in respect of their succession upon the security thereof at interest, with power for them to give effectual discharges for the money so raised.

24. Real property directed to be sold to be cbarged as personalty, except where the proceeds of sale are subject to be re-invested in realty. Compare 16 & 17 Vic. c. 51, s. 29. The interest of a successor in moneys to arise from the sale of real property under any trust for the sale thereof shall be deemed to be personal property chargeable with duty under this Act: provided that when such moneys are subject to a trust for the re-investment thereof in the purchase of other real property, to whi::h the successor would not be absolutely entitled, such moneys shall be deemed to be real property.

For what is "real property", see s. 3.

25. Personal property subject to be invested in real property how to be charged. Compare 16 & 17 Vic. c. 51, s. 30. The interest of a successor in personal property subject to any trust for the investment thereof in the purchase of real property to which the successor would be absolutely entitled shall be chargeable with duty under this Act as personal property.

"Personal property" and "real property" are defined by s. 3.

26. Allowance to donee of general power of appointment. 16 & 17 Vic. c. 51, s. 33. When the donee of a general power of appointment becomes chargeable with duty in respect of the property appointed by him under such power, he shall be allowed to deduct from the duty so payable any duty he may have already paid in respect of any limited interest takcn by him in such property.

As to when the donee becomes chargeable with duty in respect of property appointed, s~e s. 6.

As to the effect of this section, see Re Cooper and A /lell's Cl7l1tract (1876). 4 Ch. D. S02. at p. 823; [IH74-80] All E.R. Rep. Ext. 2091.

27. Limited interests. When a successor takes a limited interest only in property the value of the succession shall be estimated at thc value of that limited interest only.


28. How value of annuities, and the duty thereon, to be calculated and paid. Compare 36 Geo. 3 c. 52, s. 8, and 16 & 17 Vic. c. 51, s. 31. The value of a succession, being a legacy given by way of annuity, whether payable annually or otherwise, for a life or lives or for years determinable on a life or lives, or for years or other period of time, shall be estimated according to the present value of the annuity, and the duty chargeable on such succession shall be paid by four equal payments, the first of which shall be made before or on completing the payment of the first year's annuity, and the three other of such payments of duty shall be made in like manner successively before or on completing the respective payments of the three succeeding years' annuity respectively; and the value of any such annuity, if determinable upon any contingency besides the death of any person or persons, shall be calculated without regard to such contingency:

Provided that, if any such annuity determines by the death of any person before four years' payments of the annuity have become due and payable, then and in such case the duty shall be payable in proportion only to so many of the payments of the annuity as actually accrued and became due and payable; and in case any such annuity determines upon any other contingency than the death of a person or persons, then and in such case not only all payments of duty which would otherwise become due after the happening of such contingency, if any such would become due, shall cease, but the person or persons who have paid any duties which have previously become due may apply for and obtain a return of so much of the duty so paid as will reduce the same to the like duty as would have been payable by such person or persons for such annuity, calculated according to the term for which the same actually endured, which abatement shall be assessed by the Commissioner, and the Minister shall cause the amount of such abatement to be paid to the person or persons entitled to the same out of any moneys in his hands arising from the duties imposed by this Act.

As amended by Act of 1904, 4 Edw. 7 No. 17, s. 3. As to insertion of the word "Commissioner" see note to s. 11. Act referred to:

Legacy Duty Act, 1796, 36 Geo. 3 c. 52, 9 Halsbury's Statutes of England, 2nd ed., p. 218.

This section and ss. 29-33 are applied to the personal estate comprised in any succession, s. 33A.

As to the distinction between annuities and gifts of residue to sllccessive beneficiaries, see Crow v. Robinson (1862), 4 De G.F. & J. 337. As to the difference between a gift of the whole income subject to an annuity and a gift of surplus income and an annuity, see Attorney-Gcneral v. Wynford (1854), 9 Exch. 746.

As to determination of the value of an annuity, cf. Lilly v. West A IIstralian Trustee ExcCIltor & Agcncy Co. Ltd. (1911), 13 C.L.R. 416.

See Re Rubin. [1941] S1. R. Qd. 165, affirmed by H.c.A., [1943] St. R. Qd. 105, also.

29. Duty on legacies given by direction to purchase annuities to be calculated on the sums necessary to purchase them. 36 Geo. 3 c. 52, s. 10. and the annuities purchased to be reduced in proportion to the duty payable. The value of a succession, being a legacy given by direction to purchase with any personal estate of the testator an annuity of a certain amount for the life or lives of any person or persons, or any other term, shall be estimated at the sum necessary to purchase such annuity, and the duty chargeable thereon shall be deducted from


such sum and paid as in the case of other duties payable in respect of successions of personal property, and the person or persons paying or satisfying the l.egacy, and the person or persons for whose benefit the same is paid 0 r satisfied, shall be discharged by payment of such duty so calculated as aforesaid from all other demands in respect of the duty payable on such legacy; and the annuity to be purchased for the benefit of the person or persons entitled to the benefit of the legacy shall be reduced in proportion to the amount of the duty payable thereon as aforesaid, such reduction being calculated in the same manner as the duty so payable is hereinbefore directed to be calculated; and the purchase of such reduced annuity, together with the payment of such duty, shall saLsfy and discharge the legacy as fully as if an annuity had been purchas~:d equal in amount to the annuity so directed to be purchased.

See also s. :;3A as to application of this section.

Where the direction in the will is to layout a specified sum in purchasing an annuity, the effect is the same as a legacy of that sum, and duty is payable accordingly, Bayley v. Bishop (1803), 9 Yes. 6.

30. Where value of testamentary benefit can only be ascertained by application of the allotted (und, etc., duty to be charged on the money as applied. .36 Geo. 3 c. 52, s. 11. When a benefit is given by a will in such terms that the amount or value of the benefit can only be ascertained from time to time by the actual application for that purpose of th~ fund allotted for such purpose or made chargeable therewith, or if the amount or value of any benefit given by a will cannot by reason of the form and manner of the gift be so ascertained that the duty can be charged thereon under any other of the directions herein contained, then and in every such case such duty shall be charged upon the several sums of money or effects which are applied from time to time for the purpc ses directed by the will as separate and distinct legacies or bequests, and shall be paid out of the fund applicable for such purposes or charged with answering the same.

This section is further applied by s. 33A.

For examples of legacies which come within this section, see Re Harris (1852), 7 Exch. 344 (gift of all testator's property to wife for maintenance of herself and family); Attorney-General v. Wade, [1910] 1 K.B. 703 (devise of real estate on trust for maintenance of A).

The combined effect of this section and s. 33A is, inter alia, that where income in given to be applied from time to time at the discretion of trustees no duty is payable until the discretion is exercised, and duty is chargeable only on the several sums applied from time to time, each application being treated as a separate succe~~sion, Re Munro, [1949] St. R. Qd. 217, at p. 223.

31. How duty on legacies, etc., enjoyed by persons in succession, or having partial interests therein, shall be charged. 36 Geo. 3 c. 52, s. 12. The duty payable on a succession, being a legacy or residue or part of residue of any personal estate given to or for the benefit of, or so that the same shall be enjoyed by, different persons in succession, who are chargeable with the duties hereby imposed at one and the same rate, shall be charged upon and paid out of the legacy or residue or part of residue so given, as in the case of a legacy to one person.


When a legacy or residue or part of residue is given to or for the benefit of, or so that the same shall be enjoyed by, different persons in succession, some of whom are chargeable with different rates of duty, so that one rate of duty cannot be immediately charged thereon, all persons who under or in consequence of any such bequest are entitled for life only, or any other temporary interest, shall be chargeable with the duty in respect of such bequest in the same manner as if the annual produce thereof had been given by way of annuity; and such persons respectively shall be so chargeable with such duty, and the same shall be payable, when they respectively become entitled to and begin to receive such produce, and shall be paid by equal portions during the aforesaid term of four years, if they so long continue to receive such produce.

And where any other partial interest is given or arises out of such property so to be enjoyed in succession, the duty on such partial interest shall be charged and paid in the same manner as the duty is hereinbefore directed to be charged and paid in like cases of partial interests charged on any property given otherwise than to different persons in succession.

And all and every person and persons who become or becomes absolutely entitled to any such legacy or residue or part of residue so to be enjoyed in succession shall, when and as such person or persons respectively receive or receives the same or begin or begins to enjoy the benefit thereof, be chargeable with and pay the duty for the same or such part thereof as is so received or of which the benefit is so enjoyed, in the same manner as if the same had come to such person or persons immediately on the death of the person by whom such property was given to be enjoyed, or in such manner that the same shall be enjoyed in succession.

See also s. 33A.

For "personal estate", 'See s. 3.

This section does not apply to a case to which the proviso to s. 12 (2) applies, Commissioner of Stamp Duties v. Lightoller (1922), 31 C.L.R. 382.

This section applies not only to a gift of the income of a fund to A and after his death the capital to B, but also to the case where there i, an immediate gift of the capital to A subject to the payment of a portion thereof to B upon the happening of some event, Re Greenwood (IS69), 21 L.T. 25.

See also 21 English and Empire Digest (Rpl.), p. 117.

32. Plate, etc., while enjoyed in kind, not liable to duty till in possession of persons having power to dispose thereof. 36 Geo. 3 c. 52, s. 14. Duty shall not be chargeable on any articles of plate, furniture, or other things not yielding any income, and given to or for the benefit of, or so as that the same shall be enjoyed by, different persons in succession, whilst the same are so enjoyed in kind only by any person or persons not having any power of sale or disposition thereof, so as to convert the same into money or other property yielding an income; but if the same are actually sold or disposed of, or come to any person or persons having power to sell or dispose of the same or having an absolute interest therein, then the same duty shall be chargeable and paid thereon as if the same had been originally given absolutely and with full power to sell or dispose of the same, and shall be chargeable upon and paid by the person for whose benefit the same are sold, or

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss. 31-34 785

who have power to sell or dispose of the same or an absolute interest therein, and shall become the debt of such person, but shall not be a charge on any person by reason of his having assented to such bequest as the person having or taking the burthen of the execution of the will by which the bequest was made.

See also s. DA. As to "not yielding any income". see Attorney-General v. Rudge, [1928] 2 K.B.

515. As to "person or persons .... having an absolute interest therein", ~ee Attorney-General v. Bruce. [19011 2 KB. 391.

33. Duty on legacies, etc., satisfied otherwise than in money, etc., to be paid according to the value of the satisfaction. 36 Geo. 3 c. 52, s. 23. When a legacy or part of a legacy, or residue or part of residue, on which duty is chargeable by this Act is satisfied otherwise than by payment of money or application of specific effects for that purpose, or is released for consideration or compounded for less than the amount or value thereof, l:hen and in such case the duty shall be charged and paid in respect of such legacy or part of legacy or residue or part of residue according to the amount or value of the property taken in satisfaction thereof, or as the consideration for release thereof or composition for the same:

Provided always, that if any legacy or bequest is made in satisfaction of any other legacy or bequest or title to any residue or part of residue of any personal estate remaining unpaid, the duty shall not be paid on both subjects, although both may be chargeable with duty, but shall be paid on the subject yielding the largest duty.

See also s. 33A. The value of the property at the time when it is taken in satisfaction is the

value chargeable, Attorney-General v. Cavendish (1810), Wight 82, at p. 93. See also Thomas v . . 'v1ontgomery (1827), 3 Russ. 502; 15 Halsbury's Laws of England, 3rd ed., p. 103.

33A. Application of preceding provisions as to assessment of personalty. Compare 16 & 17 Vic. c. 51, s. 32. The provisions of the six last preceding sections of this Act shall be applicable to the personal property comprised in any succession, and to the assessment and payment of duty thereon, as if such personal property were a legacy bequeathed by the predecessor to the successor.

Inserted by Act of 1904,4 Edw. 7 No. 17. s. 12. For definition of "personal property", see s. 3. See Attornev-Gcl/eral v. Noyes (1881), 8 Q.B.D. 125, at p. 138 (meaning of

"shall be appliClhle"; "they apply when they have any application"); Cudt/oll v. CUddon (1876), 4 Ch. D. 583.

See Re Munro, [1949] St. R. Qd. 217.

34. What a1Inwance to be made for incumbrances. 16 & 17 Vic. c. 51, s. 34. In estimating the value of a succession no allowance shall be made in respect of any incumbrances thereon created or incurred by the successor, not made in execution of a prior special power of appointment, but an allowance shall be made in respect of all other incumbrances, and also in respect of any moneys which the successor may previously to his possession have laid out in the substantial repairs or permanent improvement of real property comprised in his succession.

For the colstruction of this section, see Re Peytoll (1861), 7 H. & N. 265 (annuity); Re O'Neill (18R6), L.R. 20 Ir. 73 (incumbrances not paid off owing to suspension cf sinking fund); Lord Advocate v. Glasgow (Earl) (1875). 12 Sc.L.R. 215, and, generally, 21 English and Empire Digest (Rpl.). p. 170, Nos. 990-1000.


35. No allowance to be made in respect of contingent incumbrances unless they take effect. 16 & 17 Vic. c. 51, s. 35. In estimating the value of a succession no allowance shall be made in respect of any contingent incumbrance thereon; but in the event of such incumbrance taking eff~ct as an actual burden on the interest of the successor, he shall be ~ntltled to a return of a proportionate amount of the duty paid by him III respect of the amount or value of the incumbrance when taking effect.

A mortgage given by way of guarantee, there having been no breach of the obligation guaranteed, constitutes a contingent liability, In the Will oj Moller, [1906J Q.W.N. 16.

36. The duty on successions to be calculated without regard to contingencies. 16 & 17 Vic. c. 51, s. 36. In estimating the value of a succession no allowance shall be made in respect of any contingency upon the happening of which the property may pass to some other person; but in the event of the same so passing the successor shall be entitled to a return of so much of the duty paid by him as will reduce the same to the amount which would have been payable by him if such duty had been assessed in respect of the actual duration or extent of his interest.

Liability to forfeiture at the will of the Crown of a Crown lease is a contingency within this section, Re Persse, [1922] St. R. Qd. 134; [1922] Q.W.N. 25.

37. Duty to be charged only on property obtained by the successor, and to be refunded if he be afterwards deprived thereof, etc. 16 & 17 Vic. c. 51, s. 37. When a successor has not obtained the whole of his succession at the time of the duty becoming payable, he shall be chargeable only with duty on the value of the property or benefit from time to time obtained by him; and whenever any duty has been paid on account of a succession, and it is afterwards proved to the satisfaction of the Commissioner that such duty, not being due from the person paying the same, was paid by mistake, or was paid in respect of property which the successor has bcen unable to recover, or from or of which he has been evicted or deprived by a superior title, or that for any other reason it ought to be refunded, the Minister shall thereupon refund the same to the person entitled thereto.

As amended by Act of 1904,4 Edw. 7 No. 17, s. 3. As to insertion of the word "Commissioner", see note to s. 11. For the general rule as to the time When duty becomes payable, see s. 20. Where it subsequently appears that too much duty was paid by reason of

property having been overvalued, see Re Luce, [1906] S.A.L.R. 121.

38. Allowance to be made to successor in respect of relinquished property. 16 & 17 Vic. c. 51, s. 38. When a successor upon taking a succession is bound to relinquish or be deprived of some other property, the Commissioner shall, upon the computation of the assessable value of his succession, make such allowance to him as may be just in respect of the value of such property.

But such allowance shall only be made in respect of the value of property which the successor may have acquired by a title not conferring a succession on him, and which passes from the successor to some other person.

As to insertion of the word "Commissioner", see note to s. 11.

For cases, see 21 English and Empire Digest (Rpl.), p. 170.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.35·41 787

39. CommissiOlller may compound duties; 16 & 17 Vic. c. 51, s. 39. and enlarge the time for payment. When, in the opinion of the Commissioner, a succession is of such a nature, or so disposed or circumstanced, that its value cannot be fairly ascertained, or when, from the complication of circumstances affecting the value of a succession or affecting the assessment or recovery of the duty on it, the Commissioner thinks it expedient to exercise this present authority, he may compound the duty payable on the succession upon such terms as he thinks fit, and may give discharges to the successor, upon payment of duty according to such composition; and he may, in any special cases in which he thinks it expedient so to do, enlarge the time for payment of duty.

As to insedon of the word "Commissioner" and words in the singular number related thereto, see note to s. 11.

For further powers to compound payment of duty, see s. 15, and Succession and Probate DuCes Act 1892 Amendment Act of 1895-1969, s. 4, p. 805, post. Trustees, guardians, etc., are authorized by s. 46 to compound duties.

For time for payment of duty, see ss. 20, 21. As to the extent of the Commissioner's authority to enter into agreements

under this section, see Queensland Trustees Ltd. v. Fowles (1910), 12 C.L.R. Ill; In the Will of Tyson, [1907] St. R. Qd. 52; [1907] Q.W.N. 18; Daly v. Victoria (1920), 28 C.L.R. 395.

As to powe: of the Executive Government to agree to a compromise with respect to duty, see Queensland Trustees Ltd. v. Fowles, supra.

In the absence of an agreement to compound the Commissioner has no power to make an assessment, Re Herbert Alfred Jones, [1946] St. R. Qd. 52.

See Rubin v. Commissioner of Stamp Duties, [1943] St. R. Qd. 105 (H.C.A.).

40. Commissioner may receive duty in advance, and allow discount, etc. 16 & 17 Vic. c. 51, s. 40. The Commissioner may receive any duty tendered to him in advance, and may allow discount thereon at the rate of four dollars per centum per annum, or at such other rate as may from time to time be directed by the Governor in Council; and no person, by reason of his having made any payment of duty in advance, shall be prejudiced in his right to have any repayment of duty made to him to which he may become entitled under any of the provisions of this Act.

Decimal currency reference substituted pursuant to section 7 of Decimal Currency Act of 1965.

As to insertion of the words "Commissioner" and "him", see note to s. 11. For time when duty becomes payable, see ss. 20, 21. Trustees, gl ardians, etc., are authorized by s. 46 to compound duties.

41. Commissioner may commute duties presumptively payable in respect of expectant successions. 16 & 17 Vic. c. 51, s. 41. The Commissioner may, in his discretion, upon application made by any person who is entitled to a succession in expectancy, commute the duty presumptively payable in respect of such succession for a certain sum to be presently paid; and for assessing the amount which is so payable he shall cause a present value to be set upon such presumptive duty, regard being had to the contingencies affecting the liability to such duty, and the interest of money involved in such calculation being reckoned at the rate fer the time being allowed by the Commissioner in respect of duties paid in advance; and upon the receipt of such certain sum he shall give discharges to the successor accordingly.

As to insertion of the words "Commissioner", "his" and "he", see note to s. 11. See Rubin v. Commissioner of Stamp Duties, [1943] St. R. Qd. 105.


42. Power to commute succession duty presumptively payable in certain cases. 43 Vic. c. 14, s. 11. When succession duty is presumptively payable in respect of any interest in expectancy upon the determination of a life interest or other temporary interest in possession in personal property comprised in a succession, and the duty, if any, payable upon the life interest or other temporary interest has been fully paid and satisfied, the Commissioner may, in his discretion, upon the application of the executor or trustee or other person who would be accountable for the duty in respect of such interest in expectancy if it were then in possession, commute the duty presumptively payable for a certain sum to be presently paid.

For assessing the amount which is so payable, the Commissioner shall cause a present value to be set upon the duty presumptively payable, regard being had to any contingencies affecting the liability to such duty, and the interest of money involved in the calculation being reckoned at the rate for the time being allowed by the Commissioner in respect of duties paid in advance under this Act.

Upon the receipt of the certain sum the Commissioner shall give a discharge for the duty accordingly.

As to insertion of the words "Commissioner" and "his", see note to s. 11. Discount for payment of duties in advance may be allowed under s. 40. For an example of a case for commutation, see Re Herbert Alfred Jones.

[1946] St. R. Qd. 52. An application for commutation under this section is the foundation of the

Commissioner's authority to commute, Re Rubin, [1941J St. R. Qd. 165, affirmed by H.C.A., [1943] St. R. Qd. 105.

Fur an improper exercise of the Commissioner's discretion, annexing conditions, see the judgment of Philp, J., in Re Rubin, supra, at pp. 174, 175.

43. Duty to be a first charge on the interest of the successor and persons claiming under him in the property, etc. 16 & 17 Vic. c. 51, s. 42. The duty imposed by this Act shall, notwithstanding anything to the contrary in the "Real Property Act of 1861" and "The Real Property Act of 1877," be a first charge on the interest of the successor, and of all persons claiming in his right, in all the real property in respect whereof such duty is assessed; and such duty shall also be a first charge on the interest of the successor in the personal property in respect whereof the same is assessed, while the same remains in the ownership or control of the successor, or of any trustee for him, or of his guardian or committee, or of the husband of any wife who is the successor; and the said duty shall be a debt due to the Crown from the successor, having, in the case of real property comprised in any succession, priority over all charges and interests created by him; but such duty shall not charge or affect any other real property of the successor than the property comprised in such succession:

Proviso as to settled real property subject to a power of sale, exercisable with consent of successor, etc. Provided that, when any settled real property comprised in a succession is subject to any power of sale, exchange, or partition, exercisable with the consent of the successor, or by the successor with the consent of another person, he shall not be disqualified by the charge of duty on his succession from effectually authorising by his consent the exercise of such power, or exercising any power with proper consent as the case may be; and

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.42-43A 789

in such case thE duty shall be charged substitutively upon the successor's interest in all real property acquired in substitution for the real property before comprised in the succession, and in the meantime upon his interest also in all moneys arising from the exercise of any such power, and in all investments of such moneys.

Duty of R1egistrar of Titles. When a successor, or when any other person chargeable with duty under section seventeen of this Act, applies to be registered as the proprietor of land or an estate or interest in land including the interest of a mortgagee, the Registrar of Titles shall, unless slch person produces a certificate under the hand of a Commissioner 1hat the proper duty has been paid, make an entry in the register "Succession duty not paid," and such entry shall remain upon the register until such certificate is produced, or the duty ceases to be a charge upon the land, estate, or interest, and such entry shall be deemed to be and shall be treated in all respects as an encumbrance under the said last-mentioned Acts, and the fees prescribed for the registration and release of an encumbrance shall be chargeable accordingly.

When it appears to the Registrar of Titles that anyone has become entitled to a registrable interest as remainderman or reversioner he shall be at liberty, if he deems it advisable, to make a like entry as last aforesaid in the register (which entry shall have the like effect), notwithstanding that no application for registration of such estate or interest has be';!n made.

When a record of the death of a trustee is about to be entered up, the Registrar of Titles shall not enter up such record of death until he receives a certificate under the hand of a Commissioner that no duty under "The Succession and Probate Duties Acts, 1892 to 1930," and any Act amending the same, is payable, or that duty has been paid or accounted for in respect of the property held upon trust or any interest therein, upon any death, whether such property is partnership assets or otherwise.

As amended by Act of 1904, 4 Edw. 7 No. 17, s. 13; Act of 1918, 9 Geo. 5 No. 16, s. 9; Finance Act of 1930, s. 15.

Acts referred to: Real Property Acts, 1861 to 1963, title REAL PROPERTY, Vol. 14, p. 633. Real Property Act of 1877, title REAL PROPERTY, Vol. 14, p. 737.

As to commencement of the amendments made by Succession and Probate Duties Acts Amendment Act of 1918, see ibid., p. 814, post.

For what constitutes "real property" and "personal property", see s. 3. For persons personally accountable for duty, see s. 46. As to proof of

payment or non-payment of duty, see s. 56A. As to registration and enforcement of the charge, see s. 11A. As to registration

of successors as proprietors and registration of notices of death, see Real Property Act of 1861, ss. 88, 89 and Real Property Act of 1877, ss. 32, 49, title REAL PROPERTY, Vol. 14.

The section was considered in Re Higgins; Day v. Turnell (1885), 31 eh. D. 142 (liability of executor trustees); Dugdale v. Meadows (1870), 6 Ch. App. 501 (sale of settled estates); Re Warner's S.E., Warner to Steel (1881), 17 eh. D. 711 (sale of ~:ettled estates); Attorney-General v. Mander (1896), 65 L.I.Q.B. 246; Re Hole; Davies v. Witts, [1906] 1 eh. 673.

43A. Duties of State officers to protect revenue. ( 1 ) When any t~ansfe~, release of mortgage, or other instrument is lodged for registratIon With any State officer, and in the opinion of such officer the property particularised in any such document appears to be charged or chargeable with succession duty, notice of such document having

26


been lodged shall be communicated by such officer to the Commissioner before the registration thereof, and such officer may delay such registration until a certificate, under the hand of a Commissioner, has been produced to him showing that all duty under "The Succession and Probate Duties Acts, 1892 to 1930," and any Act amending the same, has been paid, or that no duty is payable, or that the duty has been accounted for.

(2) When a record of death or of transmission by death is lodged with any State officer in respect of real property of a less tenure than freehold, or of any interest in moneys secured by mortgage, such officer shall, before recording or registering such document, require to be lodged a certificate, under the hand of a Commissioner, that all duty under "The Succession and Probate Duties Acts, 1892 to 1930," and any Act amending the same, has been paid, or that no duty is payable, or that such duty has been accounted for in respect of such property.

Inserted as from I June 1918 hy Act of 1918, 9 Geo. 5 No. 16, s. 10; a, amended by Finance Act of 1930, s. 15 (3).

As to insertion of the word "Commissioner", see note to s. 11. See also s. 43, Gille, and notes thereto.

44. Purchasers and mortgagees exempted from liability to succession duty after a specified period. 52 Vic. c. 7, s. 12. Notwithstanding the provisions of the last preceding section, or any other provision contained in this Act, real property, or any estate or interest therein, shall not, as against a purchaser for valuable consideration, or a mortgagee, remain charged with or liable to payment of any sum for succession duty after the expiration of six years from the date of notice to the Commissioner of the fact that the successor, or any person in his right or on his behalf, has become entitled in possession to his succession or to the receipt of the income and profits thereof, or from the date of the first payment by such successor or person of any instalment or part of the duty, or, in the absence of any such notice or payment, after the expiration of twelve years from the happening of the event whieh gave rise to an immediate claim to such duty.

(2) The duty, if any, unpaid at the expiration of such period of six years, or of twelve years, as the case may be, shall be payable and paid by the successor or the persons mentioned as accountable in the last preceding section, other than the purchaser or mortgagee, and shall become charged substitutively upon any other estate or interest comprised in the succession of the successor remaining vested in him, or in any person in his right or on his behalf, other than the purchaser or mortgagee, and in case of a mortgage upon the equity of redemption.

(3) This section is not to lessen or affect any liability of any successor or accountable person, other than the purchaser or mortgagee, to payment of duty, whether out of money received on any sale or mortgage, or otherwise; but a purchaser or mortgagee shall not, for the purpose of obtaining the exemption conferred by this section, be bound to see that the duty is discharged out of the money or other consideration paid or given as the consideration for the sale or mortgage.

As to insertion of the word "Commissioner", see note to s. 11. See also s. 52. "The last preceding section" refers to s. 43.

SUCC'N & PROBATE DUTIES ACT U!92-1969 ss.43A-47 791

45. Separate a!lsessments of properties. 16 & 17 Vic. c. 51, s. 43. The Commissioner shall, at the request of any successor, or any person claiming in his right, accept or cause to be made so many separate assessments of the duty payable in respect of the interest of the successor in any separate properties, or in defined portions of the same property, as may be reasonably required; and in such cases the respective properties shall be chargeable only with the amount of duty separately assessed in respect thereof; and the Commissioner may, by his certificate, to be issued in such form as he thinks fit, from time to time declare that any duties already assessed, whether collectively or distributively, in respect of any succession, shall thenceforth be charged, as to any unpaid instalments, according to any further distribution thereof, upon s,eparate parts only of the property in respect of which such assessment has been made, in which case the charge of such duties shall be thenceforth limited according to such further distribution.

As to' insertion ef the werd "Cemmissiener" and werds in the singular number relating theretO', s(:e note to's. 11.

46. What persons accountable for duty. 16 & 17 Vic. c. 51, s. 44. The following persons, besides the successor, shall be personally accountable to Her Majesty for the duty payable in respect of any succession, but to the extent only of the property or funds actually received or disposed oE by them respectively after the time appointed for the commencement of this Act-that is to say: Every trustee, guardian, committee, or husband, in whom respectively any property, or the management of any property, subject to such duty, is vested, and every person in whom the same is vested by alienation or other derivative title at the time of the succession becoming an interest in possession.

Such persons may compound duties, etc. And all such trustees, guardians, committees, husbands, and persons are hereby authorised to compound or pay in advance or commute any duty, and retain out of the property subject to any such duty the amount thereof, or to raise such amount and the expenses incident thereto at interest on the security of su:h property, and shall have power to give effectual discharges for ,the same, and such security shall have priority over any charge or incumbrance created by the successor.

In the event of the nonpayment of such duty as aforesaid, every person hereby made accountable shall be a debtor to Her Majesty in the amount of the unpaid duty for which he shall be so accountable.

Duty is a debt due to' the Crown by the successor, s. 43. The CO'mmissioner may compound duties under s. 39, and may accept duties

in advance under s. 40. Where the will gave testater's wife the light to' the eccupatien ef a heuse

free from rates, taxes and O'ther eutgoings, it was held that duty en the succession of the widow wai; payable by the trustees out of the estate and net by the widew, Re Bell, [1905] QW.N. 70.

See alsO' 15 Halsbury's Laws of England, 3rd ed., pp. 127 et seq.; 21 English and Empire Dige,t (Rpl.), p. 172.

47. Notice of succession to be given to the Commissioner, and an account of the property delivered. 16 & 17 Vic. c. 51, s. 45. The persons hereby made accountable for the payment of duty in respect of any success.ion, or some of them, shall, in the case of personal property, at the time of the first payment, delivery, retainer, satisfaction, or other discharge of the same, or any part thereof, to or for the


successor or any person in his right, and, in the case of real property, when any duty in respect thereof first becomes payable, give notice to the Commissioner or to his officers of their liability to such duty, and shall at the same time deliver to the Commissioner or to his officers a full and true account of the property for the duty whereon they are respectively accountable, and of the value thereof, and of the deductions claimed by them, together with the names of the successor and predecessor, and their relation to each other, and all such other particulars as are necessary or proper for enabling the Commissioner fully and correctly to ascertain the duties due.

The Commissioner may require any such account to be verified by declaration under the "Oaths Act of 1867."

And the Commissioner, if satisfied with such account and estimate as originally delivered, or with any amendments that may be made therein upon his requisition, may assess the succession duty on the footing of such account and estimate; but the Commissioner, if dissatisfied with such account and estimate, or if no account and estimate have been delivered as prescribed, may himself take an account and estimate or cause the same to be taken by any person or persons to be appointed by himself for that purpose, and may assess the duty on the footing of such last-mentioned account and estimate, subject to appeal as hereinafter provided.

If there is no appeal against such last-mentioned assessment, then it shall be in the discretion of the Commissioner, having regard to the merits of each case, to charge the whole or any part of the expenses incident to the taking of such last-mentioned account and estimate on the interest of the successor in respect whereof the duty is due, in increase of such duty, and to recover the same forthwith accordingly; and if there is an appeal against such last-mentioned assessment, then the payment of such expenses shall be in the discretion of the Court of Appeal hereinafter appointed.

The Commissioner may, in his discretion, adopt as the value of any shares or stock in any company or corporation such sum as, in the opinion of the Commissioner, the holder thereof would receive in the event of the company being voluntarily wound up on the date when the succession took effect.

As amended (as from 1 June 1918) by Act of 1918,9 Geo. 5 No. 16, s. 11. As to insertion of the words "Commissioner", "his" and "himself', see note

to s. 11. For the persons accountable for payment of dllty, see S5. 46, 43. The time for accounting is not postponed till the deceased's debts have been

paid, Re Harding's Will (1897), 7 Q.LJ. 126; reversed on other grounds, [1898] A.C. 769; 9 Q.LJ. 134.

Provision for statutory declarations is made by the Oaths Acts, 1867 to 1960, ss. 13, 14, title OATHS, Vol. 13, p. 324.

Where property is undervalued to a greater extent than 20 per centum, provision is made for its acquisition by the Crown at the valuation figure, s. 58.

For right of appeal, see s. 50. As to the course to be taken by the Commissioner where he exercises his

powers under the last paragraph, see Commissioner oj Stamp Duties v. Beak, [19311 St. R. Qd. 219. The Commissioner's decision under the last paragraph is subject to appeal under s. 50, Commissioner oj Stamp Duties v. Beak (1931), 46 C.L.R. 585; [1931] St. R. Qd. 219.

See Re Munro, [1949] St. R. Qd. 217.


In Re Jekyll, Deceased; Reid v. Commissioner of Stamp Duties, [1961] Qd. R. 99, Stable, J., held lhat in determining for succession duty purposes the value of shares held by a deceased person in a company at the date of his death, the full value to the seller must be ascertained however limited the market may be by determining what money value is plainly contained in the asset at the relevant time with all its existing advantages and possibilities. The task is a search for reality and a rejection of artificiality, and if the full value to the seller is the asset value of the shares and not the market value, the assessment must be made on an asset backing or liquidation basis, and not on the basis of income yield.

This decision was approved by the High Court in Re Jekyll, Deceased; Reid and Jekyll v. Commisdoner of Stamp Duties for the State of Queensland. [1962J Qd. R. 367.

47 A. Power to reassess. If, within two years after any assessment of succession or probate duty has been made or any such duty has been paid it is discove:red that the account and estimate as originally delivered disclosed a less amount than the true value of such property at the time the succession took effect, or that for any reason too little duty has been paid, the Commissioner may take a further account and estimate and reassess the duty on the footing of such further account and estimate subject to appeal as hereinafter provided, and recover any further duty payable on such reassessment, together with the whole or any part of the expenses incident to the taking of such last-mentioned account and estimate.

Inserted (as from 1 June 1918) by Act of 1918, 9 Geo. 5 No. 16, s. 12. As to insertion of the word "Commissioner", see note to s. 11. For right of appeal, see s. 50. As to the basis on which the further account and estimate is to be made

where it is alleged that too little duty has been paid, see Affleck v. R. (1906), 3 C.L.R. 608.

It appears that the Commissioner cannot alter an assessment or reassess after the period of two years has elapsed. See Scarfe v. Federal Commissioner of Taxation (1920), 28 C.L.R. 271.

As to withdrawal of a reassessment, see Union Trustee Co. of Australia Ltd. v. Commissioner of Stamp Duties. [1922] St. R. Qd. 78; [1922] Q.W.N. 13.

48. Penalty on not giving notice of succession, etc. 16 & 17 Vic. c. 51, s. 46. Pen:illty for neglect to pay duty. If any person required to give any such notice or deliver such account as aforesaid wilfully neglects to do so at the prescribed period, he shall be liable to pay to Her Majesty a sum equal to five dollars per centum upon the amount of duty payable by him, and a like penalty for every month after the first month during which such neglect continues; and if any person liable under this Act to pay any duty wilfully neglects after such duty has been finally ascertained to pay the same within twenty-one days, he shall also be liable to pay to Her Majesty a sum equal to five dollars per centum upon the amount of duty so unpaid, and a like penalty for every month after the nrst month during which such neglect continues.

Summons for account. Without prejudice to the right to the recovery of any of the penalties herein mentioned, if any person accountable for or chargeable with duty on being required by the Commissioner to deliver an account makes default in so doing, the Commissioner may, by summons before a judge of the Supreme Court in chambers, call upon such person to show cause why he should not deliver the account and pay the duty and costs, and thereupon such order shall be made as the judge thinks just.


Such summons may be served on such person by being sent to him in a registered post letter addressed to his last known place of abode or business within or beyond the State.

As amended by Act of 1904,4 Edw. 7 No. 17, s. 14; Act of 1918,9 Geo. 5 No. 16, s. 13 (as from 1 June 1918).


See also s. 49A. As to evidence, see s. 56A. As to the form of the summons to show cause, see Re White, deed., [1920]

St. R. Qd. 55; [1920] Q.W.N. 11. As to costs, see ibid.

49. Accounting party shall verify his account by production of books and documents; and Commissioner may, without fee, inspect and take copies of public books. 16 & 17 Vic. c. 51, s. 49. Every person who under the provisions of this Act delivers any account or estimate of the property comprised in any succession shall, if required by the Commissioner, produce before him such books and documents in the custody or control of such person, so far as the same relate to such account or estimate, as may be capable of affording any necessary information for the purpose of ascertaining such property and the duty payable thereon; and the Commissioner may, without payment of any fee, inspect and take copies of any public book; but all such information shall be deemed to be confidential, and the Commissioner shall not disclose the same, or the contents of any document or book, to any person, otherwise than for the purposes of this Act.

Penalty. If any person offends against the provisions of this section he shall be liable to a penalty not exceeding two hundred dollars, and, in the case of a refusal to produce a book or document, to a further penalty of ten dollars for every day during which the default continues.


As to insertion of the words "Commissioner", and "him", see note to s. 11.

49A. Default in returns, etc. ( 1 ) Any person who-(a) Without reasonable excuse fails or neglects to duly furnish

any return as and when required by this Act or the Regulations or by the Commissioner; or

(b) Without just cause shown by him, refuses or neglects to duly attend and give evidence when required by the Commissioner or any officer duly authorised by a Commissioner, or to truly and fully answer any questions put to him; or

(c) Makes an incorrect return, or in any return understates the value of any estate, or makes any false answer, whether orally or in writing, in relation to any matter or thing affecting the liability to assessment under "The Succession and Probate Duties Acts, 1892 to 1930," and any Act amending the same, of any estate; or

(d) Being employed or concerned in or about the preparation of any account, neglects or omits fully and truly to set forth therein the facts and circumstances within his knowledge affecting the liability of any person or property to assessment under "The Succession and Probate Duties Acts, 1892 to 1930," and any Act amending the same;

zhall be liable to a penalty not exceeding two hundred dollars.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.48-49c 795

(2) Payment of any such penalty shall not relieve any person or property from liability to assessment or payment of any duty or any other penalties incurred under this Act.

(3) The provisions of this section shall not affect any of the provisions of "The Criminal Code": Provided that a person shall not be liable to be proceeded against and punished both under this section and under "Th~ Criminal Code."

Inserted as f:om 1 June 1918 by Act of 1918, 9 Geo. 5 No. 16, s. 14; as amended by Finance Act of 1930, s. 15 (3).

Decimal currency references substituted pursuant to section 7 of Decimal Currency Act of 1 ~65.

As to insertion of the word "Commissioner", see note to s. 11. Act referred t):

Criminal Code, title CRIMINAL LAW, Vol. 3, p. 199. See also s. 48.

49B. Duty of public officers, etc. ( 1) All public officers, including all State officers of any Taxation Department, and all other persons and bodies corporate whatsoever having in their custody, possession, or power any books, records, registers, papers, or other documents the inspection wheIl~of may tend to secure the payment of any duty under "The Succession and Probate Duties Acts, 1892 to 1930," and any Act amending the same, or to the proof or discovery of any fraud or omission in relation to any such duty, shall at all reasonable times, notwithstanding anything to the contrary in any other Act, permit any person thereunto authorised by a Commissioner to inspect all such books, records, register>, papers, and documents, and to take such notes, copies, or extracts thereof or therefrom as he may deem necessary, without fee or reward.

(2) Every person or body corporate refusing to permit or obstructing any such inspect ion, or any such taking of notes, copies, or extracts, shall be liable to a penalty not exceeding one hundred dollars.

Inserted as from 1 June 1918 by Act of 1918, 9 Geo. 5 No. 16, s. 14; as amended by Finance Act of 1930, s. 15 (3).

Decimal currency reference substituted pursuant to section 7 Df Decimal Currency Act of 1965.

49c. Secrecy. (1) Every person employed under this Act shall preserve and aid in preserving secrecy with regard to all matters that may come to his knowledge in his official capacity, and shall not communicate any sllch matter to any other person except in the performance of his duties under this Act, or except to the Auditor-General or some officer of his department for the purposes of audit under the laws in force relating to the audit of public accounts, and to this extent the Auditor-General and any such officer shall be deemed to be persons appointed or employed under this Act.

The Commissioner and every Deputy Commissioner shall take and subscribe before a justice the prescribed oath of fidelity and secrecy. Such oath shall also be taken and subscribed by every other person appointed or employed under this Act, and the same may be administered to him by the Commissioner or Deputy Commissioner or any justice.

Every person who, in contravention of the true intent of such oath and without lawful excuse, reveals any matter or thing which has come to his knowledge in his official capacity, shaU be liable to a penalty not exceeding two hundred doUars, or to be imprisoned for any period not exceeding six months with or without hard labour.


Notwithstanding anything herein contained, it shall be lawful for a Commissioner, and he is hereby authorised, to afford to the Commonwealth Commissioner of Taxation or his deputy in Queensland, or any State Taxation Department, any information in his possession with respect to the administration of this Act; and the affording of such information shall not be deemed to be a contravention of this section.

(2) The Commissioner or any officer duly authorised by him or any witness on his behalf shall not be required to produce in court any return, declaration, valuation, statement, requisition, assessment, notice or any other document or disclose to any court the fact that he has received any information or the nature thereof or the name of the person who gave such information or any matter or thing coming under his notice in the performance of his duties under this Act except when it is necessary so to do for the purpose of carrying into effect the provisions of this Act.

Inserted as from 1 June 1918 by Act of 1918, 9 Geo. 5 No. 16, s. 14; as amended by Act of 1958, 7 Eliz. 2 No. 45, s. 3.


For form of oath, see Succession and Probate Duties Regulations of 1918, form X.

See also Criminal Code, s. 86, title CRIMINAL LAW, Vol. 3, p. 270.

50. Power for accountable party to appeal. 16 & 17 Vic. c. 51, s. 50. Any accountable party dissatisfied with the assessment of the Commissioner may, upon giving, within twenty-one days after the date of such assessment, and on payment of duty in conformity therewith, notice in writing to the Commissioner of his intention to appeal against such assessment, and a statement of the grounds of such appeal, which statement shall be furnished within the further period of thirty days, appeal by petition accordingly to the Supreme Court of Queensland; and such court, or a judge thereof sitting in chambers, shall have jurisdiction to hear and determine the matter of such appeal and the costs thereof, with power to direct, for the purposes of the appeal, any inquiry, valuation, or report to be made by any officer of the court, or other person, as such court or judge may think fit:

The costs of any such appeal shall be in the discretion of such court or judge, having regard to the extent to which the Commissioner's assessment exceeds the amount admitted by the appellant before the appeal commenced and the extent to which the Commissioner's assessment is upheld or varied.

As amended as from 1 July 1930 by Finance Act of 1930, s. 19. As to insertion of the word "Commissioner", see note to s. 11. For practice on applications by petition, see R.S.C. (1900), Order 63,

title SUPREME COURT AND PRACTICE. The appeal under this section extends to a decision by the Commissioner in

exercise of his discretion under the last paragraph of s. 47, Commissioner 0/ Stamp Duties v. Beak (1931), 46 C.L.R. 585; [1931] SI. R. Qd. 219.

As to appeal from an assessment which has been withdrawn, see Union Trustee Co. 0/ Australia Ltd. v. Commissioner 0/ Slamp Duties, [1922] SI. R. Qd. 78; [1922] Q.W.N. 13.

A point not stated in the grounds of appeal cannot be raised. Re Melrou. [1926] S.A.S.R. 11.

SUCC'N & PROBATE DUTIES ACT 1892-1969 ss.49c-53 797

As to the right to begin, see Re Greenwood (1869), 21 L.T. 25; Re De Lancey's Successioll (1869), L.R. 4 Exch. 327, note; cases cited under the Stamp Act 1894-1970, s. 24, title STAMP DUTIES, p. 332, allie.

In a case of 11rst instance, the court made no order as to costs, Rc A rclzibald, deed., [1909] St. R. Qd. 160; [1909] Q.W.N. 24.

The Commis~;ioner cannot commute in invilim, Rubin v. Commissioner of Stamp Duties, [19~3] St. R. Qd. 105 (H.C.A.).

On the essential nature of an assessment, see ibid., [1943] St. R. Qd. 105. at p. Ill.

The provisiors of this section allow an appeal in respect of an assessment of administration duty (similarly probate duty) as well as for succession duty, and further that right of appeal is available in respect of the assessments of duty under the Acts e,en where the appellant contests liability to account, and to pay any duty. So held by the High Court in Re Coulson, Deceased; Lil'illgs/olle V. ComlIlissioner of Stan;p Duties, [1961] Qd. R. 118; [1961] A.L.R. 534.

51. Duty to be entered by the Commissioner in a book, and a stamped receipt to be giiven. 16 & 17 Vic. c. 51, s. 51. When any payment of duty is made under this Act, the same shall be entered in a book to be kept by the Commissioner for this purpose; and the proper officer shall give a receipt for the same in such form as the Commissioner thinks lit, and stamped with the proper stamp for denoting the rate of dutv; and the COlT/missioner shall from time to time deliver to any person' interested in any property affected by such duty, on applying for the same for any reasonable purpose approved by the Commissioner, a certificate, in such form as he may think fit, of such payment.

As to insertion of the words "Commissioner", "thinks" and "ht", see note to s. 11.

52. Protection to bona fide purchasers. 16 & 17 Vic. c. 51, s. 52. Every receipt and certificate, purporting to be in discharge of the whole duty payable for the time being in respect of any succession or any part thereof, shall exonerate a bona fide purchaser for valuable consideration, and without notice, from such duty, notwithstanding any suppression or misstatement in the account upon the footing of which the same may have been assessed, or any insufficiency of such assessment; and no bona fide purchaser of property for valuable consideration under a title not appearing to confer a succession shall be subject to any duty with which such property may be chargeable under the provisions of this Act, by reason of any extrinsic circumstances of which he had not notice at the time of such purchase.

See also s. 44.

53. Discharge of executor, etc., from claim to duty on distribution of fund. 43 Vic. c. 14, s. 12. When an executor, administrator, or trustee has given notice in writing to the Commissioner asking for any claim to sllccession duty in respect of any fund in his hands which he intends to distribute, and has delivered to the Commissioner all particulars which he may require in order to ascertain the existence and exte~lt of any such claim, he shall be at liberty to distribute the fund amongst the parties entitled thereto, after satisfaction of any claims to duty made by the Commissioner, and shall be entitled to receive from him a certificate discharging him from his liability to any duty in respect of the fund.

Such certificate shall not in any way affect the liability of any person other than the person in whose favour it is expressed to be given.

A~ to hsertion of the words "Commissioner", "he" and "him", see note to s. II.


54. Courts in suits for the administration of property to provide for payment of duty. 16 & 17 Vic. c. 51, s. 53. When a suit is pending in any court for the administration of any property chargeable with duty under this Act, such court shall provide, out of any property which may be in the possession or control of the Court, for the payment of duty to the Commissioner.

As to insertion of the word "Commissioner", see note to s. 11.

55. Duty on Probates and Letters of Administration. Schedule. There shall be paid, in respect of every grant of Probate or Letters of Administration made in respect of the estate of any person dying after the time appointed for the commencement of this Act, duties at the rates mentioned in the Schedule to this Act, the payment of which duties shall be denoted by impressed Stamps impressed on the Probate or Letters of Administration: And no Probate or Letters of Administration shall be issued from the office of the Registrar of the Supreme Court unless payment of the duty payable in respect thereof is denoted thereon by such impressed Stamps; and a Probate or Letters of Administration granted in respect of the estate of any person dying after the time appointed for the commencement of this Act shall not be admitted in evidence in any Court of Justice unless the payment of duty is so denoted thereon.

Sec also s. 55A: Intestacy Act of 1877, s. 3D, title SUCCESSION. p. 638, ante, and Succession and Probate Duties Acts Declaratory and Amendment Act of 1935. s. 2, p. 816, post.

Payments from the Public Service Superannuation Fund are exempt. Public Service Superannuation Act 1958-1969, s. 83 (2), title PUBLIC SERVICE, Vol. 14, p. 292.

55A. Propert)' subject to probate duty. The stamp duties payable by law upon Probates of Wills, or Letters of Administration with will annexed, shall be levied and paid in respect of all the personal estate and effects or rents or other moneys whatsoever coming into the hands of the executor or administrator or recoverable by him under such grant as aforesaid in respect of any property whatsoever; and where any testator has disposed of any personal property by will, under any power or authority enabling him to dispose of the same as he thinks fit, such ~state and effects shall be deemed to be the estate and effects of the testator in respect of which Probate of the Will or Letters of Administration with -the will annexed is or are granted as aforesaid.

Inserted as from I June 1918 by Act of 1918,9 Geo. 5 No. 16, s. 15. As to letters of administration of lands, see Intestacy Act of 1877, s. 30.

,itle SUCCESSION. p. (,38. alitI'. "Personal estate" is defined by s. 3. Land acquired by partners out of

partnership moneys is, unless the contrary intention appears, partnership property, Partnership Acts, 1891 to 1965, ss. 24, 23, title PARTNERSHIP, Vol. 13. p. 423, and the interest of a deceased partner therein is liable for duty as pali of his personal estate, ibid., s. 25; Tn the Will of Butler, [19151 Q.W.N. 5.

Probate duty is primarily a stamp duty on the probate, which is a document relating to the transmission of Commonwealth inscribed stock for the purposes of s. 52A of the Commonwealth Inscribed Stock Act 1911-1963; that section therefore exempts the probate from probate duty in respect of such stock. Re Guest, deed., [1935] St. R. Qd. 248. It also has the effect of taking away the liability for probate duty in respect of such stock where probate has not been \~ranted or resealed, ibid. As to the effect of that section. see also Perpetual Trustrr' Co. Ltd. v. Federal Commissioner of Taxati()n (1932). 47 C.LR. 402.

SUCCN & PROBATE DUTIES ACT 1892-1969 ss.54-56 799

The words "under such grant as aforesaid" qualify only the word "recoverable" and an executor is liable to pay probate duty on property coming into his hands before probate granted in Queensland where the time allowed by s. II B has elapsed, Re Gue!'t, deed., supra. Neither an assessment nor regs. 5-7 of the Succession and Pl'Obate Duties Regulations of 1918 are appropriate where probate or administration is not taken out. In such a case, upon lapse of the times allowed by s. lIB, the Commissioner may proceed under the Crown Remedies Acts, 1874 to 1956 (title CROWN, Vol. 4, p. 338) to recover the duty, Re Guest, supra.

56. Regulations. make Regulations that is to say,--

The Governor in Council may from time to time with respect to all or any of the following matters,

(i) The duties of persons employed this Act, or the Regulations;

in the administration of

(ii) The accounts or returns to be furnished, and the time and mode of furnishing the same the valuations to be furnished and the time and mode of furnishing the same and the persons by whom the same shall or may be furnished;

The accounts, returns, or valuations to be furnished by any company carrying on business in Queensland and the time and mode of furnishing the same;

(iii) Empowering the Commissioner or any Deputy Commissioner to hold any inquiry for the purposes of this Act, and to take evidence on oath or otherwise, and prescribing the mode in which such powers shall be exercised;

(iv) The time and manner of giving notices;

(v) Prescribing notices to be given by various departments 01 the Government of any records or documents which may be liable to duty;

(vi) The forms to be used under this Act or the Regulations;

(vii) Imposing penalties not exceeding two hundred dollars for breach of any Regulation;

(viii) An d generally for carrying into effect the provisions of this Act.

All such Regulations shall be published in the Gazette, and thereupon shall have the same effect as if they were enacted in this Act.

All such Regulations shall be laid before both Houses of Parliament as soon as may be after the making thereof.

Substituted by Act of 1904,4 Edw. 7 No. 17, s. 15; as amended by Act of 1918. 9 Geo. 5 No. 16, s. 16 (as from 1 June 1918); Stamp Act Amendment Act of 1918, s.6 (4); Act of 1920,10 Geo. 5 No. 29, s. 3.


The reference to the Houses of Parliament now applies to the Legislative Assembly alone, Constitution Act Amendment Act of 1922, s. 2, title CON'STITtTTION, Vol. 2, p. 752.

For regulation<;. see Table of Contents. p. 739. ante.

As to validity of regulations generally. see Preliminarv Note to title ACTS OF PARLIAMENT, Vol. 1. p. 72. -


56A. Prima facie evidence. In all legal proceedings instituted by or on behalf of the Crown in pursuance of this Act, or the Regulations, the averment that-

(i) Any person executed any instrument; or (ii) Any assessment or reassessment has been duly made; or

(iii) Any requisite prescribed or satisfactory accounts, returns, or particulars have or have not been made or given; or

(iv) Any duty has or has not been paid; shall be sufficient evidence of the fact until the contrary is proved.

(2) In all legal proceedings-(i) The production of any assessment or any document under

the hand of the Commissioner purporting to be a copy of an assessment shall-

(a) Be conclusive evidence of the due making of the assessment; and

(b) Be conclusive evidence that the amount and all particulars of the assessment are correct, except in proceedings on appeal against the assessment when it shall be prima facie evidence only;

(ii) The production of any document under the hand of the Commissioner purporting to be a copy of or extract from any return or assessment shall for all purposes be sufficient evidence of the matter therein set forth without the production of the original;

(iii) The production of any document or certificate under the hand of a Commissioner that all or any duty or interest or penalties have not been paid, or that any penalties have been imposed by a Commissioner for breaches of this Act or any Regulations made thereunder, shall be conclusive evidence.

(3) Effects of assessments, etc. The validity of any assessment shall not be affected by reason of any interim assessment having been made or that any provisions of this Act have not been complied with.

Inserted by Act of 1904, 4 Edw. 7 No. 17. s. 15; as amended (as from 1 June 1918) by Act of 1918. 9 Geo. 5 No. 16. s. 17.

For power to reassess duty, see s. 47 A. Subsectiun (2) (i) (b) does not prevent a court, on an appeal from another

assessment, from properly construing a will and applying the law to such construction, Re Sutherland. deed., [1933] St. R. Qd. 356. See also Re Scott, [1929] S.A.S.R. 250.

57. Notices may be in writing or print. Every notice, demand, or like document given by or on behalf of the Commissioner under this Act or the Regulations may be in writing or print, or partly in writing and partly in print, and shall be sufficiently authenticated if signed by a Commissioner or by the officer by whom the same is given.

Where the name of the Commissioner is printed or stamped the same shall in all cases be a sufficient signature; and any notice, demand, assessment, certificate, letter, circular, or other writing or document bearing or purporting to bear his name or signature thereto, whether in writing, printing, or stamping, shall be deemed to have been duly signed by him, and judicial notice shall be taken thereof as his signature accordingly.

As amended by Act of 1920, 10 Geo. 5 No. 29, s. 4. As to insertion of the word "Commissic ner", see note to s. 11.

SUCC'N .& PROBATE DUTIES ACT 1892-1969 ss.56A-58 801

58. Power to Hcquire property undervalued. If the Commissioner is of opinion that, in the accounts, returns, or valuations furnished under this Act for the purposes of any duty, the value of any property has been understated to the extent of more than twenty per centum, the following provisions shall apply:-

(a) The Commissioner may apply to the Supreme Court for a declaration that the Crown is entitled to acquire such property under this Act;

(b) The application shall be heard by a judge of the Supreme Court, from whose decision an appeal shall lie to the Full Ccurt; and the representatives of the deceased shall be entitled to be heard;

(c) If the judge or Full Court-(i) Is satisfied that the person furnishing such accounts

returns or valuations has understated the value of such property to the extent of twenty per centum or more; and

(ii) Is not satisfied that the under-valuation was not made with a view to evading taxation,

he or such court shall make the declaration applied for, and make such order as to costs as he or such court thinks proper;

(d) Thereupon the Governor in Council may acquire the property on behalf of the Crown, and for that purpose may, within a reasonable time, by proclamation, declare that the property is vested in the Crown, but subject to all leases, mortgages, and other charges affecting the property;

(e) The effect of the proclamation shall be to vest the property in the Crown for the same estate or interest therein as the owner was entitled to at the date of the publication of the proclamation in the Gazette, but subject to all leases, mortgages, and other charges then affecting the property, and to entitle the owner to compensation therefor upon the basis of the value stated in the said accounts returns or valuations, together with the amount of ten per centum upon such value by way of an allowance for compulsory dispossession;

(f) The provisions of "The Public Works Land Resumption Act of 1906" shall, so far as applicable, but subject to this Act, apply in relation to the property so acquired as if it had been acquired under that Act;

(g) The Governor in Council may authorise the use of the property for any public purpose for which it is required, or, if it is not required for any public purpose, may authorise the disposal of it as he thinks fit.

Original s. 58 repealed by Criminal Code Act, 1899, s. 3; present section inserted by Act of 1918,9 Geo. 5 No. 16, s. 18, as from 1 June 19111; as amended by Act of 1920, 10 Geo. 5 No. 29, s. 5.

Act referred to: Public Works Land Resumption Acts, 1906 to 1955, (repealed). See now

Acquisition of Land Act 1967-1969, title WORKS.

For duty to deliver account of property and its value, see s. 47.


59. Repeal. "The Succession Duties Act of 1886" is hereby repealed except as to the estates of persons who died before the said seventh day of September, one thousand eight hundred and ninety-two.

The Succession and Probate Duties Act, 1892, applies to a remainder after a life estate created by the will of a testator dying prior to the commencement of that Act where the life tenant dies after its commencement, Re llann, decd., [1906] St. R. Qd. 330; [1906] Q.W.N. 61. And see s. 4. As to the effect of the exception with respect to estates of persons dying before 7 September, 1892. see also Registrar oj Probates v. A ngas (1921), 29 C.L.R. 477; Re Hamilton, [1900J S.A.L.R. 43; Re Whish, B.C.R., 11 June, 1894.

[See section 55] THE SCHEDULE

When an order to administer the goods or lands has been granted to the Curator of Intestate Estates and administration duty

$

has been paid by him: Upon any subsequent Grant nil When a Grant of Probate has been made to one or more

executors, with leave to another executor or other executors to come in and apply:-Upon any such subsequent Grant nil

Any grant de bonis non when duty on the original Grant has been paid in Queensland nil

When the net value of the property of the deceased person in respect of which the Grant of Probate or Letters of Admini-stration is made does not amount to $600 nil

When such value amounts to $600 or upwards, for every $200 or part thereof 2.00 This Schedule applies so that no probate or administration duty shall

be payable where the total value of the estate does not exceed one thousand dollars.

Note.-For probate and administration purposes, in estimating the net value of the property of the deceased person, there shall be included any accumulation of interest and any dividends, rents, or other increments paid or accrued since the death of the deceased person and the date of application for the grant; for probate purposes no deduction shall be allowed on account of any debt secured by mortgage upon real property.

Substituted by Act of 1904, 4 Edw. 7 No. 17, s. 16; as amended by Act of 1955, 4 Eliz. 2 No. 33, s. 4.


"Increments accrued" is not limited to increments ejusdem generis with interest dividends and rent; thus increase in value of sheep by reason of growth of their wooi has been held to be included, Re O'Brien, decd., [1920] St. R. Qd. 124; [1920] Q.W.N.26.

Documents

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