Urgent news re “multiple wills”


Note:  This lower court decision putting multiple wills into doubt has been overturned.  Please see my blog post “Basket Clauses are Okay Again”.

 What are “multiple wills”?

Where a testator prepares more than one will for his estate.  The “Primary Will” covers assets that require probate, and is submitted to the court to obtain Letters of Administration; estate fees are paid on those assets.  The Secondary Will contains assets that can be distributed to beneficiaries without probate; on these estate fees do not have to be paid.[2]    Such wills have been common for twenty years, and have attracted little to no judicial interest.[3]

What is a “basket clause”?

Primary / Secondary Wills often use “basket clauses” which give executors the power and discretion to determine what assets fall into either will, rather than enumerating each asset in one of the wills.  This is done to maximize executor freedom to move assets into the non-probated estate.

What’s the problem?

The Milne Estate case says, in essence: (1) the contents of the estate are a trust and the executor of a will is thus a trustee; (2) estates must meet the requirements of trust law; (3) trusts require certainty of subject-matter; (4) the discretionary language of basket clauses creates uncertainty as to what is or isn’t covered by that trust; and therefore (5) a Will with such “basket clause” uncertainty cannot be probated.  This decision could possibly nullify “basket clause” multiple-wills across Ontario.   Milne Estate has been appealed, but that appeal is still pending. [4]

What should you do?

If you have multiple wills, contact your estate lawyer immediately.

If you have friends or acquaintances who have multiple wills, urge them to read this post and then contact their estate lawyer immediately.

Information contained in this handout is intended as general information only and is not legal advice.

Camberwell House bears no liability to the user, in any form.

No solicitor-client relationship arises out of this handout.  Camberwell House urges that you contact your own lawyer or retain one.

The information in this handout is current only to Friday, October 19, 2018

[1]      Milne Estate (Re), [2018] O.J. No. 4656, 2018 ONSC 4174 (CanLII).

[2]      An estate saves $15.00 for every $1,000.00 in estate assets (over $50,000.00) that don’t have to be probated.

[3]      Since Granovsky Estate v. Ontario [1998] O.J. No. 508 [SCJ], ¶ 26.  It is interesting to note that while Granovsky Estate wholly changed Ontario estate law in this respect, the case has only been considered by other Ontario courts seven times in the past 20 years, according to Quicklaw.  It was never expressly adopted or approved by a higher court.

[4]      “Statement on Re Milne Estate decision”, LawPro [Lawyer’s professional insurance company], October 12, 2018.

Leave a comment

Your email address will not be published. Required fields are marked *

Visit Us On TwitterVisit Us On FacebookVisit Us On Linkedin