Forsyth (Executor of Will of Mackenzie) v Commissioner of Stamp Duties [1966] HCA 5

High Court of Australia Kitto, Taylor, Menzies, Windeyer and Owen JJ. Forsyth (Executor of Will of Mackenzie) v Commissioner of Stamp Duties [1966] HCA 5

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1966, Feb. 25 Kitto J.

This appeal raises two questions. The first is whether the State law contained in s. 102 (2) (h) of the Stamp Duties Acts, 1920-1959 N.S.W. is invalidated by s. 109 of the Constitution of the Commonwealth as being inconsistent with a law of the Commonwealth namely the provision contained in s. 94 of the Life Insurance Act 1945-1961 Cth. The provision made by the Commonwealth enactment, so far as material, is that, subject to the Bankruptcy Act, a policy effected by any man upon his own life, and expressed to be for the benefit of his wife, or of his children, or of his wife and children, or any of them, shall create a trust in favour of the objects named in the policy, and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the person whose life is insured, or be subject to his debts.

The State law referred to is one of the provisions by which s. 102 of the Stamp Duties Acts determines the composition of the "dutiable estate" of a deceased person (see s. 104) "for the purposes of the assessment and payment of death duty." The "dutiable estate" is made for these purposes to include and consist of certain classes of property described in two paragraphs. The first paragraph describes all the property of the deceased, with the exception of personal property outside New South Wales if the deceased was not domiciled in the State. The second paragraph describes in lettered sub-paragraphs certain classes of property (and the value of certain other classes of property) which did not belong to the deceased at his death but with which he had had some specified form of connexion in his lifetime. Among the sub-paragraphs of par. (2) is sub-par. (h), which comprises any money payable to any person under a policy of assurance on the life of the deceased where the whole of the premiums have been paid by the deceased. In the present case the whole of the premiums were paid by the deceased.