Recently, the Ontario Superior Court in Milne Estate (Re), 2018 ONSC 4174, held that a will is not valid if it grants the personal representative (commonly referred to as an executor) the discretion to determine what property is subject to the will. In that case, Mr. and Mrs. Milne each prepared and properly executed two wills. Their primary wills gave the named personal representative power over all property owned by the deceased except for certain named assets and any other assets that the personal representative determined may be transferred without first obtaining a grant of probate. Their secondary wills gave the named personal representative power over all assets held by the Milnes’ on death.

The Milnes both passed away in October 2017. The personal representatives of their primary wills applied to the court for a grant of probate. The court refused to issue a grant of probate in respect of the primary wills on the grounds that the discretion granted to the personal representative did not satisfy one of the three certainties of trust law (namely, the certainty of subject matter) and, as a consequence, invalidated the will in its entirety.

To be clear, the Milne decision has not threatened the use of multiple wills as an estate planning technique. However, the decision has placed in jeopardy the validity of many wills drafted with language similar to that found in the Milne’s primary wills. For that reason, if you have multiple wills, we encourage you to review them with an estate planning professional.
The Milne decision has caused a stir amongst estate practitioners across Canada. A lot of the discussion is centered around whether a will needs to satisfy the three certainties of trust law. Of perhaps greater concern, however, is that the Milne decision appears to have expanded the court’s role in a probate application by narrowing what constitutes a “valid” will.
When deciding whether to issue a grant of probate, the court (referred to in this capacity as a “court of probate”) is to consider: (1) whether the document submitted constitutes a testamentary document; and (2) whether the testamentary document is valid. This latter consideration is the focus of the Milne decision. Under the second consideration, namely assessing whether a testamentary document is valid, the court of probate asks itself the following questions:

a) Did the will-maker have the level of capacity needed to make a will?
b) Was the will-maker unduly influenced into making certain gifts within the testamentary document?
c) Does the testamentary document satisfy the requirements for formal validity (i.e. was it in writing, signed at the end by the will-maker, and witnessed by at least two witnesses in the presence of the will-maker) or, if it does not, does the testamentary document constitute the fixed and final testamentary intent of the deceased?

If the answer to each of the above three questions is “yes”, then the will’s validity should not be in question. Despite answering the above questions in the affirmative, the court in Milne found that the primary will was not valid and based its determination on the court’s interpretation of the language within the primary will. In other words, the court stepped outside of its role as a court of probate and became a court of construction. The effect of this shift is that the test for validity may now have an additional component requiring the court of probate to interpret language found within the will. Adding “language interpretation” as a possible fourth component to the validity test brings uncertainty into the previously predictable validity assessment, and the consequences of this expanded test will affect testamentary documents generally (not just multiple wills).

It should be noted that a British Columbia court of probate may consider the language within a document when deciding whether a document that does not satisfy the requirements for formal validity should be deemed a valid will. Under section 58 of British Columbia’s Wills, Estates and Succession Act, a court has the discretion to deem such a document a will if the court is satisfied that the document is the fixed and final testamentary intent of the deceased. However, this discretion does not extend to invalidating an otherwise valid will on the basis of the court’s interpretation of language within the document.

Although the Milne decision has been appealed, it will take many months for a decision to be rendered by the Ontario Court of Appeal. Recently, the Court in Re Panda Estate (a decision of the Ontario Superior Court) addressed and directly contradicted the Milne decision by finding that a will need not satisfy the three certainties. However, until the Ontario Court of Appeal renders its decision, it is best to approach the Milne decision with caution.