After much discussion and debate within the legal profession, the Divisional Court has allayed the concerns of many with its recent decision in Milne Estate (Re), 2019 ONSC 579 (CanLII) [“Milne appeal”]. Above all else, the Milne appeal provides clear appellate authority amidst conflicting lower court decisions that basket clauses are here to stay.
BACKGROUND FACTS
The Milne appeal originated from a straightforward probate application in common form, after a couple passed away leaving virtually identical Primary and Secondary Wills. As is often done in estate planning, the testators used allocation clauses (otherwise known as “basket clauses") to separate those assets of their estates which required probate, and those assets which did not.
The Primary Wills settled upon the executors “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” [emphasis added].
The Secondary Wills settled “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 named estate trustees then commenced symmetrical applications to probate the two Primary Wills. When the matter eventually came on for a hearing, the Application Judge rejected the applications on the basis that the Primary Wills were invalid for lack of certainty of subject-matter. The estate trustees then appealed the Order of the Application Judge to the Divisional Court.
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