Posted February 4, 2019 by Shawn Erker

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We are pleased to report that the Divisional Court has allowed the appeal and set aside the orders of the Application Judge in the Milne Estate (Re) decision.

The Divisional Court did not in any way criticize the use of the allocation clause and in fact noted that “the use of allocation clauses is a common estate planning technique” (paragraph 22). However, the Divisional Court did NOT find that all allocation clauses, in all circumstances, will be and are valid. It would thus appear, as was the case before the original Re Milne decision, that care is still required by will drafters to ensure that multiple wills are drafted in a manner that avoids possible invalidity.

We encourage you to read this decision, which can be found on CanLII here.