Court Issues Important Ruling on “Double Wills”
In some circumstances, we recommend that clients prepare a “double” Will – more properly referred to as a “primary” Will and a “secondary” Will for a single testator. The primary Will deals with estate assets that require probate; the secondary Will covers assets that can be transferred to beneficiaries without having to go through the probate process.
Done right, this can minimize a testator’s probate fees and administration taxes.
However, the ruling in a recent Ontario decision called Re Milne Estate addressed a question that can dramatically affect the legal validity of this kind of Will arrangement. Specifically, the court considered whether a Will is still valid if it allows the executors to decide whether property falls under the primary Will or the secondary Will.
The testator in Re Milne Estate had created two Wills. The Primary Will covered all his property except certain named assets, and except other assets that the Trustees determined did not need to be included after-the-fact. The Secondary Will addressed all property owned by the testator, and then specifically included certain named assets, and included those assets that the Trustees decided could be left out.
This wording was problematic; the two Wills essentially worked at cross-purposes to each other. To be valid in law, a Will of any type had to conform to certain requirements, most notably that it had to demonstrate certainty in terms of the subject-matter that it covered. This included certainty as to:
- The intention to create a legal trust mechanism;
- The subject-matter or property committed to the trust; and
- The objects of that trust or the purposes to which the property is to be applied.
After confirming that there is no legal prohibition against the use of multiple Wills in Ontario, the court held that in this particular case, the Secondary Will was valid, but the Primary Will was not.
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Although it met two of the other legally-required “certainties,” the Primary Will in this case fell short of meeting the requirement as to certainty of the subject-matter or property: By giving the Trustees after-the-fact discretion it left questions as to the exact property that was subject to its provisions. In contrast, Secondary Will included all of the testator’s property of every kind, without exclusion. It overlapped with the Primary Will completely, and with no gap.
The court accordingly directed the registrar not to accept the Primary Will for probate, but allowed the Secondary Will to go forward.
For those with multiple Wills, this decision in Re Milne Estate signals a need to have the wording reviewed by a lawyer, to ensure that the wording is valid and achieves its intended goals.
For the full text of the decision, see:
Milne Estate (Re), (2018)
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