Answer – No.

As long ago as 1915, the High Court held in Glenn v Federal Commissioner of Land Tax (1915) CLR 490 in predecessor land tax legislation that unit holders’ interests did not answer the statutory definition of ‘owners’. Glenn concerned a testamentary trust, which was subject to a trust for accumulation and under which beneficiaries were to take the residuary estate. The question was whether the beneficiaries held equitable interests in possession or in remainder, and were ‘owners’ under the land tax legislation. The High Court held that they were not owners of a freehold estate in possession.

As HOPE JA pointed out in DKLR Holding (No. 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510, to describe a legal owner of property as also being the beneficial owner means that there is no one else with an ‘equitable right’ to regulate or control the way in which it might exercise the rights which the legal ownership gave to it.

A further issue that arises is how can a beneficiary have a proprietary interest if it “was impossible to say what the trust fund in question was” in circumstances where the unsatisfied rights of indemnity or exoneration exist? The English case of Lord Sudeley v Attorney-General [1897] AC 11 reasoned that a beneficiary of an unadministered estate does not have a proprietary interest in the estate’s assets until the testator’s debts are paid, after which it is possible to identify the assets of the estate as those to which the beneficiaries are entitled.

If the trustee (executor) has incurred liabilities for which he or she is entitled to be indemnified, the beneficiary’s interest in the estates’ assets (trust) becomes qualified, or deferred, because the beneficiary cannot assert a right to compel the executor (trustee) to adhere to the terms of the will (trust) to hold the property on the beneficiary’s behalf without allowing for the trustee’s right of indemnity.

The High Court’s decisions in Buckle and CPT Custodian endorsed the idea that it is impossible to say what constitutes the corpus of the trust fund where the trustee has an unsatisfied right to indemnity or exoneration and so be in a position to identify what the beneficiaries’ interests are.

Summary: The extent of a beneficiary’s interest is a right to compel the executor(trustee) to adhere to the terms of the will (trust). Secondly, a beneficiary’s interest is engrafted onto or imposed on the holder of the legal title (executor), it is not carved out of the legal estate.