- On 12 February 2020, Revenue NSW issued Revenue Ruling DUT 046 on the deceased estates concession in s 63 of the Duties Act 1997 (NSW).
- Revenue NSW reads the deceased estates concession narrowly.
- Beneficiaries seeking to vary will gifts should consider the resulting CGT consequences.
- An appropriation of assets may be more tax effective than a deed of a family arrangement in varying will gifts.
No duty is payable on the vesting of estate assets in the deceased’s legal personal representative (‘LPR’) on a grant of probate or letters of administration (DA s 65(12)). The deceased estates concession focuses on the transfer of dutiable property from the LPR to a beneficiary.
Section 63(1)(a) of the DA levies a $50 duty on a transfer of dutiable property by the LPR to a beneficiary where the transfer constitutes:
- a transfer made under and in conformity with the trusts contained in the deceased’s will or on intestacy;
- a transfer of property the subject of a trust for sale contained in the deceased’s will; or
- an appropriation of the deceased’s property in or towards the satisfaction of a beneficiary’s entitlement under the trusts contained in the deceased’s will or on intestacy.
Transfer made under and in conformity with the will or on intestacy
This limb of the deceased estates concession is read strictly. A transfer must be made under and in conformity with the trusts of the will. It is insufficient that the transfer is consistent with those trusts (Sanders v Chief Commissioner of State Revenue  NSWADTAP 22 (‘Sanders’)).
A transfer pursuant to a family provision order will fall within this limb as it takes effect as a codicil to a will (or a will in the case of intestacy) (Succession Act 2006 (NSW) (‘SA’), s 72). A vesting order under the SA will also fall within this limb as it has the same effect as a transfer by the LPR to a beneficiary (Vukic: Estate of Grbin v Grbin  NSWSC 212).
Where a beneficiary makes a transmission application with the LPR’s consent and in conformity with the will, this is treated as a transfer by the LPR to the beneficiary to which the $50 duty concession can apply (DA s 63(2A)).