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Superior court decision on multiple wills raises questions for Canadian practitioners

Tuesday, 13 November, 2018

Canadian estate practitioners have expressed concerns around a ruling in the Ontario Superior Court of Justice (the Court) voiding a primary will, which calls into question the practice of using multiple wills as an estate-planning tool.

In Milne Estate (Re), 2018 ONSC 4174, the Court ruled that a primary will was invalid due to the uncertainty of the subject matter, and consequently could not be admitted to probate.

John Douglas Milne and Sheilah Marlyn Milne passed away in 2017, leaving two virtually identical primary and secondary wills, the latter expressly not revoking the former.

The primary wills were created for those assets for which the probate process would be required, while the secondary wills held those assets that could be dealt with without a grant of probate. By separating assets according to their requirements into two wills, testators can reduce the probate fees associated with managing their estate, as well as smooth the administration process.

The couple’s solicitor, Brett D. Murray, one of the executors of the estate, confirmed through an affidavit that both primary wills were in force and not revoked by the secondary wills.

However, in Court Justice Dunphy held that the primary wills did not “create a valid trust”, as they did not satisfy one of the three certainties required for a trust to be valid: “Certainty as to the subject-matter or property committed to the trust.”

The ruling resulted in the primary wills being invalidated and not admitted to probate.

The decision has caused widespread concern among Canadian estate practitioners, both in Ontario and in other provinces – notably, British Columbia, where the multiple-will strategy has grown in popularity since the Wills, Estates and Succession Act came into place.

Mary Wahbi TEP, Fogler Rubinoff, called into question the judge’s decision to treat the will as a trust: “A will is a testamentary document, and it can create a trust, but it is not one itself…Between them, the wills cover all the assets, so even if you have to treat them as a single document, they shouldn’t be ruled invalid.”

Stan Rule TEP, Sabey Rule, added, “If a will-maker has capacity, the will meets the formal signing and witnessing requirements of validity, and the will-maker acted freely, and knew and approved of the contents of the will, then the will is admitted to probate. The will might create trusts or may contain gifts that are invalid, but that does not affect the ability of the executor to obtain a grant of probate. Even if all of the gifts in a will were determined to be invalid, the executor would still be entitled to a grant.”

The case has been appealed to the Divisional Court.

Sources