TLA Intervenes in the Milne Appeal in Divisional Court
December 13, 2018
Posted by: Sandra Porter
On Tuesday December 11, 2018 the TLA was well-represented by Ian Hull and Tim Youdan, who intervened in the Milne Appeal. It was heard by Justices Morocco, Swinton and Sachs in a packed Osgoode Hall courtroom.
Our counsel stressed the importance of a judgment that will give clear direction to the Ontario bar (including the TLA’s hundreds of members who practise in the Estates and Trusts area) and their clients and other members of the public.
The Court heard from our counsel about the need to clarify the validity of using allocation clauses in multiple wills. The use of an "allocation clause" that allows an Estate Trustee to have some form of control over whether a particular asset is governed by the Primary Will or the Secondary Will is a common estate planning technique. Privacy, speed of administration and reduced taxes payable under the Estate Administration Tax Act, 1998 are significant advantages for many testators who contemporaneously execute more than one will.
Our counsel submitted that, contrary to the Applications Judge’s finding, an estate trustee has inherent discretionary power to allocate assets between a will that is filed for probate and one that passes assets without probate.
The TLA heartily thanks Ian Hull, Tim Youdan and their crack team at Hull and Hull and Davies for excellent advocacy. We look forward to the Court’s judgment. We’ll keep you posted.