By Martin Rumack

Recently an Ontario court handed down an important ruling in a case called Re Milne Estate, and it’s one that could impact the validity of your wills.

As part of their estate planning and with the help of a lawyer, Mr. and Mrs. Milne had each prepared both a primary will and a secondary will. This type of “dual will” is widely used in Ontario and is accepted by the courts as a legitimate way to help lessen probate fees and keep estate administration costs down.



The primary will lists the type of assets that require the Estate Courts to grant probate and confirm the legal ownership of the assets of the deceased; this requires the court’s certification so that the assets set out in the primary will can be dealt with.

The assets dealt with under a primary will might include real estate, publicly traded securities, bank accounts, life insurance policies, automobiles and other property. The purpose of the secondary will is to deal with assets that will not require an Estates Court’s certification that they were legally owned by the deceased. Asserts typically covered by a secondary will usually include shares of a privately held company where the beneficiary knows that the shares were owned by the deceased, as well as jewellery, furniture and art work of the type that do not require the certification of the Estates Court regarding legal ownership.

The focus of the Milne Estate case revolved on a “basket clause” that was contained in both the primary and secondary wills. This clause permitted the executors/trustees to use their discretion in dealing with the assets of the estate contained in both wills. This in turn raised questions around the validity of the wills in the first place, due to the lack of precision around which of the two types of asserts were being dealt with. The judge stated that he had to decide whether “a will that grants the executors the discretion to determine what property is subject to the will [is] a valid will.”

The court decided that the clause failed “to describe with certainty” that property was the subject matter of either will. The judge ultimately decided that the secondary will was valid, and the primary will was invalid – meaning the provisions of the secondary will were to prevail and the primary will was of no effect.

This far-reaching decision could affect your existing primary and secondary wills and estate planning. If you have a primary and secondary will, I recommend that you speak to your lawyer to ensure the wording in your wills is not vague as was the judgment in the Milne case.

Toronto lawyer Martin Rumack’s practice areas include real estate law, corporate and commercial law, wills, estates, powers of attorney, family law and civil litigation. He is co-author of Legal Responsibilities of Real Estate Agents, 4th Edition, available at the TREB bookstore and at LexisNexis. Visit Martin Rumack’s website.

3 COMMENTS

  1. The challenge with publishing deadlines…as I’m sure Mr Rumack will update us, this article is now out of date given a Nov 14th 2018 decision by Justice Penny in Panda Estate (Re).

    Furthermore, the appeal in Milne is being argued next week. It may well be overturned.

    • I posted this information below, previously, and believe such important information might be worth repeating for REM readers.

      Here’s something I thought REM readers might want to check out.

      Not available in stores. . .

      ===

      Did you all know that, here, a marriage “revokes” (cancels) an existing will? Now that’s a scary thought.

      Perhaps read Barry Fish’s and Les Kotzer’s book on the subject, entitled “The Wills Lawyers” (one of four of their books) to learn all sorts of things most of us can’t even begin to imagine in the layman’s world.

      For those of you working with young people who know from nothing about wills, or for those who specialize in working with seniors, you might find this information useful.

      You can check directly, but it is my understanding that the authors will do a gratis check of an existing will for foibles …

      Google Urban Dictionary says: [foible]

      (“Problems that, when serious, cause failure or the symptoms of failure.”) See book details at:

      http://www.thewillslawyers.com

      Disclaimer: I receive no gratuity endorsement. This is just a vital head’s up additional topic to enlighten our REM newspaper readers.

      Respectfully,

      Carolyne L 🍁

    • Thanks Phil. In his judgment the judge in the Panda case wrote: “I respectfully decline to follow the decision of Dunphy J. in Re Milne Estate. A will is not a trust. The validity of a will for purposes of an application for probate falls to be decided upon the application of a clear set of criteria which do not include the need to satisfy the “three certainties” required for a valid trust and, specifically, the certainty of subject matter. The testator’s direction in the will to his personal representatives – to administer certain property under the secondary will where a grant of authority by a court of competent jurisdiction for the transfer, disposition or realization is not required – does not, in any event, render the will itself invalid or “uncertain.”

      The full decision is here: https://www.canlii.org/en/on/onsc/doc/2018/2018onsc6734/2018onsc6734.html?autocompleteStr=panda%20estate&autocompletePos=1

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