Words and Phrases - "will"
Milne Estate (Re), 2019 ONSC 579
Each of the late Mr. and Mrs. Milne had a primary will, which dealt with property for which the executors determined that grant of authority by a court of competent jurisdiction was required for transfer or realization of the property, and a secondary will for the balance of their property. The application judge had denied applications for a Certificate of Appointment of Estate Trustee respecting the primary wills on the ground that such wills viewed as purported trusts failed on the basis of uncertainty of subject matter (i.e., the allocation clause referred to above failed to identify the deceased’s property to which it applied.
Before setting this order aside and directing that the Certificates of Appointmentbe be issued, Marrocco ACJ stated (at paras 34-35) that a will (which “is an instrument by which a person disposes of property upon death”) may “contain a trust, but this is not a requirement for a valid will” and quoted with approval (at para. 37) the statement in Williams on Wills that “Although the title to the assets vests in the personal representative … the property comprised in residue is not held in trust for the beneficiary under the will so as to invest any equitable interest in him.”
Although it thus was unnecessary to demonstrate certainty of subject matter respecting the primary wills, any such requirement nonetheless would be satisfied. Marrocco ACJ stated (at para. 49):
The property in the Primary Wills can be clearly identified because there is an objective basis to ascertain it; namely whether a grant of authority by a court of competent jurisdiction is required for transfer or realization of the property.