Does the word “testamentary expense” include estate duty on personal property?
Saskatchewan, Canada
The following excerpt is from Galbraith Estate (Re), 1919 CanLII 257 (SK CA):
In England it has been held (In re Clemow; Yeo v. Clemow [1900] 2 Ch. 182, 69 L.J. Ch. 522) that the words “testamentary expenses” included estate duty on personal property, because such estate duty was in substitution for the probate duty, a stamp tax which had to be paid upon the estate before the executor could get probate of the will, this probate duty having been held to be a “testamentary expense.”
It was also held that estate duty on real estate was not a “testamentary expense” because the executors could get probate without paying this duty, it being charged on the real estate. In re Sharman; Wright v. Shearman \ 19011 2 Ch 280, 70 L.J. Ch. 671.
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