The Ontario Superior Court of Justice has recently given two contrasting decisions regarding the validity of dual Wills in the context of an Application for a Certificate of Appointment of Estate Trustee with a Will (otherwise known as an application for probate).
In Milne Estate (Re), [2018] O.J. No. 4656, the Court held that a Secondary Will was valid but the Primary Will was not. In that case, the Court concluded that the requirement for a valid trust that there be certainty of subject matter was not satisfied with respect to the Primary Will because the language used in the Primary Will conferred a discretion on the Estate Trustees to determine retroactively whether any particular assets are included in it.
Approximately two months later, the Court gave a contrasting decision regarding the validity of dual Wills. In Panda Estate (Re), [2018] O.J. No. 6075, the Court declined to follow the decision in Milne Estate (Re). The Court held that a Will is not a trust and that the validity of a Will for purposes of an application for probate does not include the need to satisfy the requirement for certainty of subject matter.
It is notable that the Milne Estate (Re) decision has been appealed.
Our lawyers with expertise in this area of practice can you review your dual Wills to avoid pitfalls in light of these recent developments.
Blog post written by Robert Di Lallo, associate lawyer with Daniel & Partners LLP.
