Affleck v R [1906] HCA 2

Affleck v R [1906] HCA 2 - HCA 1906 case summary — Zoe

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trator out of the personal estate of the testator or intestate payment of the testamentary and funeral expenses in to all debts of the testator or intestate, and if the Personal estajy. be insufficient to pay such duty, the exeentor or adminisiay shall satisfy the same out of the real estate." See, 103 oy vides that the duty may be made to fall upon the beneficiaries according to the benefits they obtain, See. 104m vides that the instrument of probate or letters of administration is not to issue from the office until the duty payable has bag. paid, and the fact that the duty has been paid is to be certifsdog the instrument; otherwise it cannot be admitted in evidens Then comes see. 105 upon which the question arises in this we It is as follows : - * If after any duty has been paid under fli: Part of this Act it shall be discovered that too little duty has bea paid the person by whom such duty might have been pad dull pay the additional duty to the Master, and the amount so payat shall be a debt of such person to Her Majesty." Under seit the duty payable is to be deemed to be a debt of the testatorer intestate to Her Majesty, while under see. 105 the amount pap. able for additional duty is to be a debt of "the person by whim such duty might have been paid" (whatever that may meant Her Majesty. See. 106 provides for a refund of duty when tw much duty has been paid in consequence of debts of the de being discovered which were not included in the statement. right is given subject to the proviso that the Master is to satisfied that such debts exist. See. 108 provides that "t statements required to be made under this Part of this Act shill contain such particulars of property and of debts and liabilti and be in such form and be verified in such manner and by th oaths of such persons as the rules may preseribe and any ment may be altered or varied with the permission of the M or as he may direct, and when finally approved by him shall be certified by his signature or that of the officer, and the cetti of the Master or of the officer shall be final and conclusive atl subject to no appeal." There is only one other section to whit! I need refer, and that is sec. 98, which provides that "if any executor or administrator shall fail to filea statement as requtel

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HIGH COURT ' eat, ea leduty has been paid, then the certificate is not in the way. This ay was taken by the Full Court in Vietoria in Reg. v Smith upon which the Full Court based the judgment now under appa Tt was suggested in that case that a valuable portion of the esate of the intestate had been omitted from the statement under nis. take of law. It had been mentioned in the statement 'but had not been valued, nor was its value included in the final balane certified by the Master. The question raised in that case was whether the estate was liable to pay the additional duty. Tew 7 a special ease, and that was the only question submitted for the decision of the Court. It was held that that particular estate was liable to pay the additional duty. The question was vey fully argued, and an elaborate judgment of the Court, consisting of Stawell C.J. and Williams and Holroyd JJ.,on that point was given by Holroyd J. After giving judgment that learned Judge added some observations, in reference to which we were asked to say that they represent the opinion of the Court that the ett cate cannot be re-opened. But on consideration it will be found that the learned Judge expressed the contrary opinion, The words are these (2): - "In the course of the argument a doubt was hinted whether any sum could be recovered beyond the amount certified by the proper officer, whose certificate is to be final and conclusive, and subject to no appeal (sec. 16)" The learned Judge was merely stating the argument as to see 16 (sec. 108 of the present Act) adding an expression of dissent and not of assent. He went on to point out that the certificate "is. not final against the Crown as to the amount of the duty, and consequently cannot be final as to the balance upon which the duty is calculated, nor as to the items of which that balance is made up. Probably sec. 13" (sec. 105 of the present Act) "refers to the discovery of facts showing that the estate has been under valued or the debts over-estimated." So that it is quite in accort- ance with the opinion of that Court that the certificate is not final and may be re-opened under some circumstances Th one condition upon which it may be re-opened is that iti discovered that too little duty has been paid. Now, in order to (1) 9 V.L.R. (L.), 404, (2) 9V.L.R. (Le), $04, at p. M16

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: : i slatennt, and, if he refuses, there is power in the Court under s.9s order him to make it and to enforee obedience to the order, Thy the statement comes before the Master for his consideration an) it is for him to decide what is the final balance, If a question to valuation, or a question of law arises, it may go to the Supe Court, and then the decision of jury in the ease of a questn of valuation, or the decision of the Court in the case of 4 question of law, becomes final. When the final balance has bien arrived at and the certificate of the Master given, the Mastermay recover the duty payable on the final balance so certified in om of two ways. He may bring an action against the exeeutor or administrator under sec. 102 because the debt is a debt payable by the executor or administrator, or he may under see. 101 get ay order from the Court against the estate under which a suffcest part of the property may be sold and the proceeds applied in payment of the duty. Now, all that process for the ascertainment of the final balance is evidently devised for the express purpose ot having the questions which may arise in settling the amount duty payable tried and determined in the first instance by the Master and not by the Court or by a jury. As to an origin! payment of duty it therefore became necessary to provide thi, when the Master came before the Court to enforee its payment, the statement certified by him should be taken to be final ani conclusive and subject to no appeal. That is the meaning of sec. 108, and that is the reason why the certificate is given # conclusive character. 'The certificate is a final judgment uponthe value in respect of which duty is to be paid, and when the Master goes before a Court to obtain payment of the duty due in respect of it then the certificate is final for all purposes. 'There is no doubt that that is the reason why the words "shall be final and conclusive and subject to no appeal" are used in sec. 108. Now, in see. 105 totally different cireumstances are dealt with The duty has been paid and probably the estate has been wound up. Then it is discovered that too little duty has been paid an the questions arise what is the issue to be tried under that section, and how is it to be proved? First, as to the meaning of "to? little duty," I cannot assent to the argument of the Attomé-

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General that the meaning of those words is to be restricted as he contended in his first ground. The value of the estate appearing upon the certificate, and. the relationship of the bene- fiaries towards the deceased also appearing in the certificate, the only ground upon which payment of duty could be re-opened would be, if that contention is correct, that there had been a miscalculation of the amount of duty. 1 think that is too narrow a view to take of the operation of sec. 105, especially when it is remembered that the miscalculation, if any, would be by the Crown itself. When we look at sec. 106 it is clear that sec. 105 means more than that. See. 106 is a section giving to the executor or administrator a right corresponding to that given by sec, 105 to the Crown. In sec. 106 there is a limitation upon the right in these words, "If . . . it shall be found that too much duty has been paid in consequence of debts of the testator or intestate being discovered which were not included in the statement." That clearly opens up the question of value of the estate, and it would be incomprehensible that the question of the proper balance should be allowed to be re-opened for that purpose and should not be allowed to be re-opened for the purpose of obtaining payment of duty which had been underpaid. There is another view of the matter which also bears upon the question of the certificate. Payment of too little duty, as has been pointed out by the learned Chief Justice, may arise from the omission of property from the statement; it may equally arise from the under-valuation of property included in the original statement, or from the over-valuation of the debts included in the original statement. It would certainly be a very extraordinary position that the Crown, in the event of the discovery of some new pro- perty, should be able to obtain a further payment of duty, but, where it was apparent that there had been a gross under-valuation of the property or a gross over-valuation of the debts in the original statement, the statement as to both these matters should be conclusive by virtue of sec. 108, and not liable to be re- opened. It appears to me such a reading of sec. 108 would restrict very largely, not only the rights of the executor or administrator, but also those of the Crown in collecting duty where too little duty had been paid.

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Judgment (110 paragraphs)

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