Category ArchiveProperty

Property &taxes rob on 15 Jun 2011

Queensland stamp duty in some cases will more than triple for low value established home buyers

The Queensland budget abolition of the home duty concession will increase the tax imposed on a buyer of a relatively low priced $350,000 home from the current $3,500 to $10,675 effective 1 August 2011, a 205% increase, or more than triple the previous tax payable.  Another example is that stamp duty tax on a home purchased for $500,000 will increase from $8,750 to $15,525 which is a 77% increase.

Leases &Property &Succession rob on 01 Feb 2011

Retirement Villas are not really owned after purchase – The Trust Company Limited & Anor v Zdilar & Ors [2011] QSC 5

Ann Mary Ashton (“the deceased”), a great grandmother, died aged 91 in 2009 while living in a self-contained retirement unit. She paid $312,000 for the unit 2 years earlier. As is typical, her land tenure to the retirement unit was not freehold, but a 99-year lease. 11 years earlier, she made a will that gave to her grandchildren the freehold, free-standing home at 18 Esma Street in which she was then living “or any substitute house property I shall own at the date of my death”. The deceased gave the residue of her estate to her great grandchildren.

The retirement unit operator paid an exit fee of $274,840 to the estate. The executors asked for advice from the Queensland Supreme Court as to whether that money was, on a proper reading of the will, for the grandchildren or great grandchildren.

On 31 January 2011 Justice Margaret Wilson delivered reasons for her decision that the retirement unit was not substitute house property owned at the date of death. After a concise review of similar decisions where plain meaning is always the starting point, Justice Wilson consulted the Oxford English and Macquarie Dictionaries, concluding her judgment as follows.

“Unlike the testatrix in Re Blake Dec’d, the testatrix in this case made her will when she was still living in her own home. She did not expressly contemplate that by the time she died she might not be living independently. She referred to “any substitute house property” rather than to “any other accommodation facility”. If the testatrix had been living in a home unit or town house bought with the proceeds of sale of 18 Esma Street when she died, then that property would have been within the description of a “substitute house property” owned by her within the meaning of her will. I doubt that the unit in the retirement village is embraced by the words “substitute house property”. But even if it is, it was not a property owned by her when she died.” [Paragraphs 39 to 40]

In essence, the decision turned on a finding that the plain meaning of “own” did not cover 99 year leasehold tenure, despite section 33I of the Succession Act 1981 (Qld) by which, subject to contrary intention in the will, provides a rule of construction that a “general disposition of land, or of land in a particular area, includes leasehold land, whether or not the testator owns freehold land”.

Re Purcell (1991) 103 FLR 271 was authority for a ‘house’ to include a ‘unit’ but –

“The real question is not what was the testatrix trying to achieve but, rather, what did she mean by the words used in her will when it took effect. It is relevant for this purpose to look at what she had intended to refer to by the words she used at the time the will was executed.” Re Purcell Higgins J at 279

Re Willis [1996] 2 Qd R 664 was also cited by the Court.

“The intention of the testatrix must be derived primarily from the words themselves, and an intention cannot be inferred if the words could not reasonably support such a meaning. However, a will should not be construed in a strictly technical or legalistic sense and the construction should be sensitive to the factual context of ordinary life and circumstances. So too if special personal circumstances of a testator have a bearing on the meaning of an expression that he may adopt, they should be accorded proper influence.”

Section 33C of the Succession Act 1981 (Qld) allows admission of evidence of a testator’s intention to interpret a will which is ‘ambiguous in light of surrounding circumstances’ but not to establish circumstances giving rise to the ambiguity.

The distinction drawn by the Court largely changed the previous substantive effect of the will. The difference may have been lost on Mrs. Ashton who paid the price of a home for her retirement unit tenure. Is it nonsense or plain language to consider she owned it?  Under the terms of the lease, it ended 14 days after death triggering the exit payment. The decision favours the utility of precise will drafting to avoid a post-mortem analysis of what the deceased might have wanted. Perhaps too far.

The Trust Company Limited & Anor v Zdilar & Ors [2011] QSC 5

High Court &Property &Succession rob on 27 Oct 2010

A personal cause of action sometimes dies with the person

In WORKCOVER QUEENSLAND v AMACA PTY LTD & ANOR [2010] HCA 34 the Australian High Court has clarified that Queensland legislation limiting the rights of a deceased estate to recover damages for pain and suffering and the like does not limit the liability of the wrongdoer. A worker died from a dust related condition, having previously received an insurance based compensation payment. The insurer sought to recover their loss from the employer. The Court of Appeal of the Supreme Court of Queensland (her Honour McMurdo P dissenting) held that section 66 of the Succession Act operated to reduce the insuer’s claim to that which would be available to the deceased estate. Allowing the appeal, the High Court held the statutory limit only applied to an action brought for the benefit of the estate on behalf of the deceased and did not restrict the insurer’s right of indemnity to recover against a wrongdoer.

Economics &Property &Twitter rob on 25 Oct 2010

Australian house prices 63% above long-run average price-to-rent ratio. USA prices about right.

Australian house prices 63% above long-run average price-to-rent ratio. USA prices about right. The Economist.