Any trust created by statute not subject to the three certainties

Testators were married couple who passed away on same day after creating materially identical primary and secondary wills. Primary wills settled upon executors all property owned “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”. Secondary wills, which expressly did not revoke primary wills, settled upon executors all property owned “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”. Executors unsuccessfully applied for determination that testators' primary wills were valid. Will was form of trust that had to satisfy “three certainties”. Secondary wills were valid and vested in executors all property of testators and therefore satisfied requirement of certainty of subject-matter. Primary wills, by contrast, vested in executors’ entire discretion to determine retroactively whether any assets were vested under will at testators' deaths based on executors' view as to whether probate was necessary or desirable. Executors appealed. Appeal allowed. Application judge erred in finding that will was trust and three certainties were required for valid express trust such that allocation clause in primary wills resulted in uncertainty of subject-matter because wills failed to identify deceased's property to which they applied. Although discretionary, allocation clauses power conferred by them must be exercised in accordance with standards applicable to fiduciary. Will may contain trust but was not requirement for valid will. While s. 2(1) of the Estates Administration Act (Act) states that deceased person's property is vested in the personal representative “as trustee” there remains distinctions between trustees and executors. In any event, any trust created by s. 2(1) of Act is created by statute rather than by will and would not be subject to the three certainties. Alternatively, subject-matter of primary wills was certain because property was clearly identified. Broader questions of interpretation and validity of powers of appointment or other discretionary decision-making conferred on estate trustees were matters of construction and not necessary to grant probate.

Milne Estate (Re) (2019), 2019 CarswellOnt 843, 2019 ONSC 579, Marrocco A.C.J.S.C., Swinton J., and Sachs J. (Ont. Div. Ct.); reversed (2018), 2018 CarswellOnt 15063, 2018 ONSC 4174, S.F. Dunphy J. (Ont. S.C.J.).

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