Provisional good news: a separate judge has rejected Milne Estate

In Panda Estate (Re), 2018 ONSC 6734 (CanLII)

As the reader will recall, the Milne Estate decision said that a multiple will basket clause failed because — according to Dunphy J. in Milne Estate — a will is a form of trust and that, in order for a will to be valid, it must create a valid trust and satisfy the “three certainties”. [For further information on this, please see our blog entry “Urgent news re “multiple wills”, and for two critiques of Milne Estate please see “Two good articles on the Milne Estate decision“.]

Mr. Justice Penny in the Panda Estate case did not agree with the reasoning of — and did not follow — 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’.” [¶33]
“…to establish validity for purposes of probate, a will must conform to certain formal requirements…, provide for distribution or administration of property and take effect upon death.” [¶20]
“A will is a unique instrument. A will shares some of the attributes of a contract and some of the attributes of a trust but it is neither; a will is its own, unique creature of the law.” [¶21]
“Wills frequently create or otherwise employ trusts, to be sure. When they do, the three certainties will no doubt be relevant to the validity of the trust. The invalidity of the trust element of an otherwise valid will, however, is not coequal with the invalidity of that will.” [¶22]
“Similarly, the SLRA creates a statutory trust in favour of those who become beneficially entitled to property when vested in the deceased’s personal representative. However, that does not happen by virtue of the will but, as Professor Oosterhoff has pointed out, `in spite of’ the existence of the will.” [¶23]
“…Failure to establish certainty of subject matter is, therefore, an irrelevant consideration in establishing formal validity for purposes of probate.” [¶24]

It will be interesting to see if other judges follow Justice Penny’s lead, and whether Milne Estate is overturned on appeal.  Camberwell House will keep you informed.

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