The appellants, estate trustees for two deceased individuals who executed mirror Primary and Secondary Wills, appealed a decision denying their applications for Certificates of Appointment of Estate Trustee.
The application judge had held that a will is a trust and that the allocation clauses in the Primary Wills failed the 'three certainties' test for trusts due to uncertainty of subject-matter.
The Divisional Court allowed the appeal, finding that a will is not a trust and is not subject to the three certainties.
The Court further held that even if the three certainties applied, the allocation clauses provided an objective basis to ascertain the subject-matter, satisfying the certainty requirement.
The Court ordered the issuance of the requested Certificates of Appointment.
