In Milne Estate (Re), 2018 ONSC 4174 (CanLII), the court refused to grant probate to a will where there was uncertainty as to the subject matter governed by the will. We blogged and podcasted on this case here and here.

Historically, probate has been granted to wills that have not disposed of property. For example:

• In Brownrigg v. Pike (1882), 7 P.D. 61 (Eng. P.D.A.), the court probated a Will that did no more than appoint an executor;
• In Jordan, Re (1868), L.R. 1 P.& D. 555 (P.D.), the court probated a will that only appointed an executor, even though the executor had renounced;
• In Re Blow, 1977 CanLII 1274 (ON SC), the court stated that “In my view, it is not an essential element of a testamentary instrument that it have dispositive effect (although the fact that an instrument does not purport to dispose of property may be a factor to be taken into account in determining whether it was intended to have testamentary effect”. There, however, a precatory memorandum of advice to executors was not admitted to probate;
• In Tatnall v. Hankey (1838), 2 Moo. P.C. 342, 12 E.R. 1036, a will that merely executed a power of appointment was entitled to probate;
• In Barnes v. Vincent (1846) 5. Moo. P.C. 201, 13 E.R. 468, the Privy Council held that a grant of probate could be made without an inquiry into the validity of an exercise of the power of appointment, or even whether the alleged power of appointment in fact existed;
• Section 12 of the Estates Act allows for probate to be granted even if the will does not purport to dispose of any property in Ontario.

For a further and more extensive commentary on the Milne decision, see Professor Oosterhoff’s article, “What is a Will and What is the Role of a Court of Probate?”.

Thank you for reading.
Paul Trudelle