Ontario case could affect estate plans across the country

A recent case addressing the validity of a will could have a dramatic impact on lawyers across the country. In jurisdictions that permit multiple wills, the Ontario Superior Court of Justice decision Re Milne Estate, 2018 ONSC 4174 could invalidate thousands of wills done by estate planners.

Kevin Cheung

A recent case addressing the validity of a will could have a dramatic impact on lawyers across the country. In jurisdictions that permit multiple wills, the Ontario Superior Court of Justice decision Re Milne Estate, 2018 ONSC 4174 could invalidate thousands of wills done by estate planners. It could also compromise the estate plans of lawyers who have corporate or secondary wills dealing specifically with their practice. 

In Ontario, the rationale for multiple wills stems, in large part, from a strategy to reduce estate administration tax (probate fees). While probate fees may not be a huge concern in other jurisdictions, multiple wills also allow lawyers and other professionals or business owners to have a will dealing solely with their business or other assets. 

Read more: Do all wills go to probate in Ontario?

As a will creates a trust upon death, it must meet certain requirements to be a valid trust: 1) certainty of intention (giving away items); 2) certainty of subject matter (what is being given away); 3) certainty of object (who or for what purposes the property is to be applied). 

In Re Milne Estate, the testators had primary and secondary wills. The primary wills were submitted for probate. In reviewing the wills, Justice Sean Dunphy found that the primary wills failed to satisfy the certainty of subject-matter requirement. The primary wills contained the following language commonly found in such wills:

“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."

Justice Sean Dunphy found that he was not able to determine what property fell under the will. First, the property in the trust must be determinable on the date of its creation (date of death). It cannot be something that arises later on because a trustee decides so. Secondly, it needs to be objectively determinable what property falls under the will. As the estate trustees had discretion to determine what assets fell under the wills in this case, Dunphy found that there was no objectivity. Because it failed to have certainty of subject matter, the primary wills were found to be invalid.  

For lawyers who do estate planning or have had multiple wills done as part of their estate plan, now would be a good time to review the wills to ensure compliance with Re Milne Estate. It would be prudent to advise clients of this decision and encourage them to review their wills with you. While the case has been appealed, if it is upheld, thousands of estate plans could be in jeopardy.  

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