sec.78Abolition of rule in Allhusen v Whittell

### sec.78 Abolition of rule in Allhusen v Whittell Where, under the provisions of the will of a person ( the deceased ) who dies on or after 1 July 1973, any real or personal estate included (either by specific or general description) in a residuary gift is settled by way of succession, no part of the income of that property shall be applicable in or towards the payment of the debts and liabilities which have accrued at the date of death or in payment of the funeral, testamentary and administration expenses, or of any legacies bequeathed by the will. Subsection (1) does not apply to any commission which is payable to the trustee in respect of any such income as is mentioned in that subsection or to any testamentary or administration expenses which, apart from that subsection, would be payable wholly out of income. The income of the settled property shall be applicable in priority to any other assets in payment of the interest (if any) accruing due on the debts, liabilities, funeral, testamentary and administration expenses, and legacies, after the date of the death of the deceased and up to the payment thereof, and the balance of the income shall be payable to the person for the time being entitled to the income of the property. Where, after the death of the deceased, income of assets which are ultimately applied in or towards payment of the debts, liabilities, funeral, testamentary and administration expenses, and legacies, arises pending such application, that income shall, for the purposes of this section, be deemed income of the residuary estate of the deceased. In this section— administration expenses includes duty payable under the Succession and Probate Duties Act 1892 and estate duty payable under any Commonwealth Act and any duty payable in any State or country outside Queensland on or consequent on or arising out of the death of the deceased to the extent to which such duties are payable out of residue. This section shall only affect the rights of beneficiaries under the will as between themselves, and shall not affect the rights of creditors of the deceased. This section shall have effect subject to the provisions (if any) to the contrary contained in the will and to the provisions of any Act as to charges on the property of the deceased. (sec.78-ssec.1) Where, under the provisions of the will of a person ( the deceased ) who dies on or after 1 July 1973, any real or personal estate included (either by specific or general description) in a residuary gift is settled by way of succession, no part of the income of that property shall be applicable in or towards the payment of the debts and liabilities which have accrued at the date of death or in payment of the funeral, testamentary and administration expenses, or of any legacies bequeathed by the will. (sec.78-ssec.2) Subsection (1) does not apply to any commission which is payable to the trustee in respect of any such income as is mentioned in that subsection or to any testamentary or administration expenses which, apart from that subsection, would be payable wholly out of income. (sec.78-ssec.3) The income of the settled property shall be applicable in priority to any other assets in payment of the interest (if any) accruing due on the debts, liabilities, funeral, testamentary and administration expenses, and legacies, after the date of the death of the deceased and up to the payment thereof, and the balance of the income shall be payable to the person for the time being entitled to the income of the property. (sec.78-ssec.4) Where, after the death of the deceased, income of assets which are ultimately applied in or towards payment of the debts, liabilities, funeral, testamentary and administration expenses, and legacies, arises pending such application, that income shall, for the purposes of this section, be deemed income of the residuary estate of the deceased. (sec.78-ssec.5) In this section— administration expenses includes duty payable under the Succession and Probate Duties Act 1892 and estate duty payable under any Commonwealth Act and any duty payable in any State or country outside Queensland on or consequent on or arising out of the death of the deceased to the extent to which such duties are payable out of residue. (sec.78-ssec.6) This section shall only affect the rights of beneficiaries under the will as between themselves, and shall not affect the rights of creditors of the deceased. (sec.78-ssec.7) This section shall have effect subject to the provisions (if any) to the contrary contained in the will and to the provisions of any Act as to charges on the property of the deceased.