Another case and another conclusion on multiple will planning in Ontario

In the last issue of As a Matter of Law, There's lots of buzz in Ontario about primary and secondary wills, we wrote about the decision in Milne. That decision caused a stir in the legal community when the court found that commonly used wording for creating primary and secondary wills made the primary will invalid because of the discretionary powers the wording gives the executor of the estate.

It has only been a few weeks since the Milne case and the decision in Panda Estate (Re) 2018 ONSC 6734, a case with similar facts, already offers a conflicting view.

In the Panda Estate case, Justice Penny indicated that the application before the court was for probate and not for interpreting the authority under the will related to the trustee determining which assets fall into the estate for probate purposes. Justice Penny indicated that a will is not a trust and therefore the requirements for the three certainties

certainty of intent to create a trust,

certainty of the subject matter or property of the trust, and

certainty about the objects of the trust or the purpose do not apply.

As a result, Justice Penny granted the estate trustee’s application for probate.

Even though the facts of the two cases are similar, these court decisions come to different conclusions. The Milne decision has been appealed, leaving the legal community with two different outcomes and yet more uncertainty. What we do know is that these two cases demonstrate the usefulness of insurance products where a beneficiary can be named, and probate avoided.