Accounting for Law
Estates & Wills & Trusts

New decision offers hope to multiple will holders

Multiple will holders have new hope that their testamentary documents will be upheld after a Superior Court judge went against a colleague’s decision by granting a certificate of appointment, Toronto trusts and estates lawyer Patrick J. Aulis tells AdvocateDaily.com.

Aulis, founder of Aulis Law Firm Professional Corporation and North York Mediation, acted for the successful applicants in the case, convincing Ontario Superior Court Justice Michael Penny that the wills before him were valid, allowing him to appoint trustees to administer the estate. 

That ruling came just weeks after a previous decision by Justice Sean Dunphy, which cast doubt on the validity of dual wills in the province, and was subsequently appealed.

The common estate planning tool sees primary and secondary wills executed by the same testator with the aim of smoothing the estate administration process by placing assets requiring probate in the primary will and all others in the secondary will.

“The new decision is important because Justice Penny chose not to follow Justice Dunphy,” Aulis explains. “The appeal of Justice Dunphy’s decision is still going to be the most important in terms of reaffirming the law, but in the meantime, we have a line of cases going in each direction.

“For people who are in court regarding multiple wills before the appeal is heard, we’re in a bit of a vacuum, but this will give them hope that they can get a decision more in line with Justice Penny’s,” he adds.

Dunphy ruled that the primary wills before him were invalid because they failed to “describe with certainty” the property that was subject to the will, instead leaving the decision up to the discretion of the trustees.

The couple in the case, each of whom had primary and secondary wills, died in October 2017, designating their daughter, accountant and lawyer as trustees of their estate.

According to the decision, the primary wills put the executors in charge of “all property owned by me at the time of my death EXCEPT ... [certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for a transfer or realization thereof,” while the secondary will said it referred to “all property owned by me at the time of my death INCLUDING ... [certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for the transfer or realization thereof.”

The judge ultimately voided the primary wills, finding that the language failed to identify the property it related to, violating the subject-matter certainty necessary for any valid will.

However, Penny ruled the opposite way in similar circumstances, concluding that the certainty principles alluded to by Dunphy refer to trusts, not wills.

“In conclusion, a will is not a trust,” Penny wrote. “The validity of a will, therefore, does not turn on satisfying the three certainties required for establishing the validity of a trust. Failure to establish certainty of subject matter is, therefore, an irrelevant consideration in establishing formal validity for purposes of probate.”

Aulis says many among the estates bar favour Penny’s interpretation and hope it will be upheld by the appeal court.  

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