Multiple Wills – Important Update

February 26, 2019

Beard Winter LLP

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In our October 29, 2018 notification, we advised readers of a recent Superior Court decision of “Re Milne” (the “SC Decision”) that brought into issue the validity of certain language commonly used in multiple wills, often referred to as “Primary and Secondary Wills”.

Primary and Secondary Wills are used as an estate planning technique to minimize Estate Administration Tax (probate fees) that may be payable on death. Although the SC Decision did not invalidate the concept of multiple Wills, it found that certain wording in the Wills invalidated the Primary Will because it provided the executors with the discretion to determine which assets are governed by each Will. The SC Decision caused concern among estate planning practitioners because variations of this discretionary wording are commonly found in Primary and Secondary Wills.

Due in part to the significant and wide-ranging adverse impact the SC Decision had on the estate plans of many individuals in Ontario, the SC Decision was appealed to the Divisional Court on an expedited basis.

The appeal decision (the “Appeal Decision”) was released last week. To the relief of many, the Divisional Court allowed the appeal and set aside the SC Decision. The Appeal Decision confirms that the use of wording in Wills which give executors discretion to decide which assets are governed by each Will is an acceptable estate planning practice which does not invalidate the Wills. While this is welcome news, multiple wills should still be drafted with great care to ensure validity.