A Hot-Button Decision on Multiple Wills

September 24, 2018 Natalia R. Angelini Uncategorized 0 Comments

Milne Estate (Re) is a recent decision that has generated lively discussion in our office.  In this case, a deceased couple died on the same day, each leaving identical primary and secondary wills. The primary wills applied to: “all property owned by me at the time of my death EXCEPT…[certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for a transfer or realization thereof”.  The secondary wills, expressly not revoking the primary wills, applied to “all property owned by me at the time of my death INCLUDING…[certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for a transfer or realization thereof”.

The executors of the estates applied for probate in respect of the primary wills, specifically seeking grants limited to the assets referred to in the wills. After written submissions were sought and provided, an oral hearing was conducted. The applications were unopposed.

The Court treated the central issue as whether or not a will is valid if there is uncertainty as to the subject-matter of the trust created by it. The estate trustees submitted (1) that questions of construction or interpretation of the will are no bar to probate, and (2) that there was no uncertainty because the excluded assets are sufficiently defined in the primary wills.

In respect of (1), the Court relied upon Neuberger v. York as providing it with the entitlement to examine the validity of the will where questions arise from an ex facie examination of the will itself. As for (2) the Court proclaimed that a will is a form of trust, such that in order to be valid, it must create a valid trust [and satisfy the formal requirements of the Succession Law Reform Act, which it did]. The primary wills in this case did not create a valid trust as certainty of subject-matter, one of the “three certainties” needed to create a valid trust, was absent.  The Court did not accept it as sufficient for the assets to be determined later by the estate trustees. It reasoned that “If multiple wills are to be employed…the property must be ascertainable objectively based upon the expressed intent of the testator without regard to discretion of the Estate Trustees exercised afterwards.”

I expect this case will generate debate on several points, including the Court’s assessment of validity at the probate stage, the pronouncement that a will must satisfy the three certainties to create a valid trust, and the conclusion that a will is not valid if it confers upon executors the discretion to retroactively determine the assets included therein.

Thanks for reading and have a great day,

Natalia R. Angelini

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