In Milne Estate (Re), 2018 ONSC 4174, the Superior Court grapples with the question: can a will give the executors the discretion to determine what property is included in that will?
John and Sheilah, a married couple, both passed away on October 2, 2017. They both had Primary Wills with an unusual provision, clause (f), stating that:
"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" (para 2)
In other words, clause (f) gave the trustees the discretion to exclude assets from the Primary Wills. These excluded assets would then be subject to Secondary Wills set up by John and Sheilah.
The three executors commenced two Applications for Certificate of Estate Trustee with a Will Limited to the Assets Referred to in the Will.
The question before the court is, are these Primary Wills valid? Can a will grant executors authority to determine what property is subject of that will? To answer this question, S.F. Dunphy J. went back to the basics of trusts. A will is a form of trust, and to be valid, a trust must satisfy the "three certainties":
- Certainty of intention
- Certainty of subject matter
- Certainy of objects
The first and third criteria are satisfied here. There was no doubt that John and Sheilah meant to make these wills. And the object of the wills is clear from the various bequests. The issue is whether there is certainy of subject matter when the will itself gives the trustees discretion to determine what property is subject to that will.
The applicants argued that clause (f) did not result in any uncertainty because they had the discretion to determine what was excluded from the Primary Wills. Once the exclusions are made, the remaining assets subject to the Primary Wills are very clear.
The court rejected this argument. Certainty of subject matter requires that the subject matter is clear at the time the trust is created, not after the fact. A will that lets trustees retroactively determine what is included doesn't satisfy this criteria.
The Bottom Line
To satisfy certainy of subject matter, a will must describe with certainty what's included. Where there's multiple wills, the assets covered by each will must be clear from the intent of the testator. For these reasons, the court found the Primary Wills invalid.