Private ruling: Commissioner's discretion - deceased estate
Date of advice: 6 May 2026
Published: 13 July 2026
Ruling period: Year ended 30 June 20YY
Date scheme commenced: DD MM 20YY

Ruling: Q1: Will the Commissioner exercise the discretion under section 118-195 of Income Tax Assessment Act 1997 (ITAA 1997) to allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain or capital loss you made on the disposal? | A1: Yes. Having considered your circumstances and the relevant factors the Commissioner will allow an extension of time. Further information about the Commissioner's discretion can be found by searching ato.gov.au for 'QC 66057'.

Relevant facts and circumstances: The deceased passed away on DD MM 20YY. The dwelling is located at the property. The deceased acquired the property after 20 September 1985. The deceased owned the property jointly with their spouse. Their spouse passed away on DD MM 20YY. The property was not used to produce income and was the deceased's main residence from the date of purchase until their death. The property is situated on less than 2 hectares of land. The deceased left a Will dated DD MM 20YY. In early 20YY, you engaged solicitor (your former solicitor) to make an application for Probate on your behalf. It became apparent that there were issues in the drafting and execution of the Will, in relation to: • The deceased's illegible signing of the Will, • A clerical error resulting in the omission of the word 'each' from a clause with significant consequences for potential entitlements and • The incorrect dating of a codicil to the Will. These matters were the subject of various requisitions by the Probate Registry in the Supreme Court. On DD MM 20YY, the Probate Registry issued a requisition to your former solicitor in relation to: • Whether rectification of the Will was required, • The production of a list/workbook referred to in the Will, • Evidence of due execution, • Further particulars as to the valuation of assets and • A discrepancy in the address listed on the application. On DD MM 20YY, the Probate Registry issued a further requisition to your former solicitor in relation to: • Whether the list/workbook ought to be considered a codicil to the Will and • The remaining items from MM 20YY, which your former solicitor had not answered. On DD MM 20YY, the Probate Registry issued a further requisition seeking an affidavit of due execution and knowledge. On DD MM 20YY, the Probate Registry issued a further requisition noting the affidavit that had been filed did not annex the required documents. On DD MM 20YY, the Probate Registry issued a further requisition to your former solicitor in relation to a suggestion that they should reconsider whether rectification of the Will was required and, if not seeking: • Affidavit evidence from the executor about how they intended to administer clause XX of the Will. • Written consents from the beneficiaries regarding the form of the Will. Following the requisition on DD MM 20YY, your former solicitor informed you that they would prepare an application for rectification of the Will as suggested by the Probate Registry. This involved seeking consents from each of the beneficiaries whose interests would be affected. Your former solicitor made an affidavit in support of this rectification application dated DD MM 20YY. You regularly followed up with your former solicitor seeking an update on the progress of the application, including by email on DD MM 20YY. On DD MM 20YY, your former solicitor filed the originating application seeking rectification with the Probate Registry. On DD MM 20YY, the application was then rejected by the Probate Registry. You did not become aware that the rectification application had been rejected until MM 20YY. On DD MM 20YY, your former solicitor sent you an email apologising for the problems with the applications for Probate and suggesting that you engage another lawyer to progress the matter. In MM 20YY, you terminated your instructions to your former solicitor and engaged Company A lawyers (your lawyers). On DD MM 20YY, your lawyers filed an application for rectification of the Will to address the omission of the word 'each'. On DD MM 20YY, the Senior Deputy Registrar of the Probate Registry of the Supreme Court made an order rectifying the Will. Probate was granted on DD MM 20YY. Following the grant of Probate, you undertook the administration of the estate, including the work necessary to put the property on the market for sale. On DD MM 20YY, you put the property on the market. You entered into a contract to sell the property on DD MM 20YY with settlement occurring on DD MM 20YY.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 118-195