West v Commissioner of Taxation (Cth) [1949] HCA 50

High Court of Australia Latham C.J. Rich and Dixon JJ. West v Commissioner of Taxation (Cth) [1949] HCA 50

ORDER Question answered — No. Case remitted to Latham C.J.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 16 Latham C.J.

The question submitted by this case stated is whether the Commissioner of Taxation was correct in including in his assessment of the dutiable estate of Helen Amelia Weston deceased for the purposes of the Estate Duty Assessment Act 1914-1928 the value as at the date of her death of the corpus of "the daughter's share" settled by an indenture of settlement dated 29th November 1911. "The daughter's share" was the share of Mrs. Helen Amelia Weston under the will of her father the late Albert Terry. The testator, after making certain provisions for his widow and one of his sons, directed that his trustees should stand and be possessed of the whole of his estate as to five equal thirteenth parts thereof for three of his sons and as to eight equal thirteenth parts thereof for another son and three daughters in equal shares. Under this provision the daughter's share of Mrs. Weston was an interest in two-thirteenths of the residuary estate left by her father. The will contained a direction that the share of a daughter should not vest until she should attain the age of forty years or marry under that age and that if a daughter died under the age of forty years without being married her share should accrue to others of the testator's children. These provisions taken by themselves would have given Mrs. Weston a contingent interest in the corpus of two-thirteenths of the residuary estate which interest would have become vested when she attained the age of forty years or married under that age. But what would otherwise have been the result of these provisions is altered in material respects by the following provision:—" And I also will and declare that the share or provision for each of my said daughters under the trusts of this my Will shall respectively be enjoyed by her as a personal provision and free whensoever she shall be covert from the control and engagements of her husband and so that her receipts alone notwithstanding any coverture shall be sufficient discharges to my Trustees And it is my Will and desire that the share in my trust estate of every daughter of mine under any of the trusts or provisions of this my Will who shall be married at the time of my decease or shall be about to be married under the age of forty years shall be by deed settled and assured upon her and her children and so as to be free from the debts or control of any husband and in such way and manner as my Trustees shall in the discretion of my Trustees appoint or think best but so nevertheless as not to deprive any such daughter of the annual income arising from her share during her life."