Posted:November 14, 2018

You may have already heard about the ripples that the decision, Re Milne Estate, is making in the legal community, so we thought we’d share our thoughts with you on this decision and what we’re currently doing at MHN Lawyers for our corporate clients in light of this decision.

In a nutshell this decision determined that a clause that permitted the trustee to determine what assets belonged to a non-probate will versus the probate will to be invalid and made all the assets fall under the probate will. As a result of this, probate was payable on the whole of the estate rather than just the assets that required probate.

In addition, there are some concerns over a number of findings that the court made in this decision, that may have a wider impact. In particular, it reviewed the whole process of getting “probate” and stated that probate in and of itself is not a mandatory process, interpreting it as a discretionary process. This causes some concern as assets are often being defined either under a probate will or a non-probate will on the basis of whether probate is required to deal with those assets or not. As such, this could be deemed giving executors discretion akin to the clause struck down by the court and making these clauses vulnerable to being found invalid.

Good News: This decision is under appeal and generally felt to be not good law.

Bad News: The appeal could take well over a year to happen. So what should be done in the interim?

Currently, we are reviewing our corporate wills and recommending, where wills include definitions of assets that hinge on whether probate is required or not, that these wills be updated to remove this type of language due to this present change in law. Especially, where there are concerns with fragility of health, we are strongly recommending updates to the wills. Ultimately, we’re leaving it up to our clients whether they want to update their will or not, as it’s their decision whether they want to wait out the appeal or not.

If you have concerns regarding your estate plans as a result of this decision, please do not hesitate to reach out to us and we’d be happy to review any concerns you may have.

Maria Kinkel is a lawyer and partner with the firm MHN Lawyers LLP, Simcoe, Ontario.

The material presented in this article is intended for information purposes only and does not constitute legal advice.

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