The decision in Milne Estate (Re) ( 2018 ONSC 4174 ) (“Milne”) referenced in our October 15, 2018 post has been appeal to the Ontario Divisional Court. As discussed in that post, the Milne decision invalidated a “basket clause” in a primary will that granted the estate trustee the discretion to determine whether the assets of the estate fell under the primary will or the secondary will. To be clear, the decision did not invalidate the concept of multiple wills; it found that the wording of one clause in one set of wills caused the primary will to be invalidated.

The type of language used in the wills referred to in Milne has been used widely for over a decade in Ontario, and such wills have been probated by the courts as acceptable and valid wills without concern for the issues raised by the Judge in Milne. Accordingly, the decision came as a surprise to the legal profession, and it now appears there is a serious inconsistency in the law and we are hopeful that the Divisional Court, which will hear the appeal, will deal with the matter quickly. Leading scholars in the area of wills and trusts law have unequivocally rejected the logic and premises of the Judge’s decision in the Milne decision and we are cautiously optimistic that the Divisional Court will take a similar position.

Until the Divisional Court rules on the matter, however, it is difficult to say with certainty how the courts will deal with applications for certificates of appointment (probate). Our clients who have used multiple wills to plan their estates and are concerned that their wills may have been affected by the Milne decision, should contact their lawyer at the firm to see how they might be affected in their particular circumstances.