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An Update on Dual Wills

In a November 2018 blog post, Robert DiLallo of Daniel & Partners LLP presented two recent contrasting Ontario Superior Court decisions regarding the validity of dual wills in the context of an Application for a Certificate of Appointment of Estate Trustee with a Will (also known as an application for probate).

These cases included Milne Estate (Re), [2018] O.J. No 4656 and Panda Estate (Re), [2018] O.J. No. 6057.  In the Panda Estate (Re) decision, the Court declined to follow the ruling in Milne Estate (Re).  The Court ruled that a Will is not a trust, deciding not to follow the ruling in Milne Estate (Re).

In the November statement, our firm mentioned that the Milne Estate (Re) decision had been appealed.  We are pleased to report that the Divisional Court has allowed the appeal and set aside the orders of the Application Judge in the Milne Estate (Re) decision.

The appeal decision examined three issues brought forth by the appellants:

  • Did the Application Judge err in holding that a will is a trust?
  • Did the Application Judge err in holding that the “Three Certainties” of a trust, determined the validity of a will?
  • Did the Application Judge exceed the Court’s inquisitorial jurisdiction?

The Divisional Court found that primarily, a will is not a trust.  The Application Judge sided with The Honourable Mr. Justice Penny of the Panda Estate (Re) decision, finding that the judge in Milne Estate (Re) cited no authority in support of the statement that a will is a trust, and that this claim was an error of law.

Further, the Divisional Court’s decision that a will is not a trust proved the claim that the “Three Certainties” of a trust determining the validity of a will is false.  In addition, the appeal found that even if this principle were true, that the subject-matter of the Primary Wills is certain.

Finally, the Divisional Court supported The Honourable Mr. Justice Penny in stating that discretionary decision-making conferred on estate trustees are matters of construction and not necessary to the grant of probate, although the overstepping of inquisitorial jurisdiction was not necessary in coming to a final decision on the appeal.

The team at Daniel & Partners LLP are well equipped to assist you with your legal issues. Contact our office today.

Blog post written by Scott Easterbrook, Brock University intern.