Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

A will outlines how the testator’s property is to be distributed to the named beneficiaries upon the testator’s death. Following such death, it must be determined whether the will has to be submitted to the court for probate, in which the will and the estate trustee are certified. Part of this process involves determining estate administration and probate taxes to be paid on the assets outlined in the will. There are certain strategies that can be used to lower the amount of taxes paid, including having multiple wills.

Different assets can be dealt with using multiple wills. When a testator has multiple wills, they likely have a primary and secondary will, with possibly additional wills to deal with different property. Having multiple wills may be advantageous to testator’s who wish to reduce probate taxes and deal with assets in different jurisdictions.

Assets that are typically dealt with in a primary will include bank accounts, real property that is registered solely in the name of the testator, personal property such as cars and boats, and registered plans and insurance.

Secondary wills, on the other hand can include assets that do not have to be probated. This may include assets that do not have a registered title. They can also include shares in a private corporation as well as unsecured debt and any household goods and personal items that are not kept in a safety deposit box.

The usage of primary and secondary wills is to reduce tax that may be payable under the Estate Administration Tax Act 1998. For example, shares in a private company often do not require probate and can be quite valuable. If such assets are dealt with in one will that is not probated, and other assets that do require probate are set out in another will, the former will not be subject to probate tax, as probate taxes are only payable on the value of the assets covered by the will that is probated. In addition, if a testator is dealing with assets in a different jurisdiction, it is possible to have two separate wills with two separate executors. This may result in a more simple probate and estate administration process in their respective jurisdictions.

In 2018, the Ontario Superior Court of Justice made what some estate lawyers referred to as a controversial decision. Justice Dunphy ruled that the identical primary wills of John and Sheilah Milne were invalid because the will provided the estate trustee with discretion to determine what assets were to form the subject matter of the primary wills.¹ The court here determined that the Milne’s primary wills failed for uncertainty of subject matter because each clause failed to identify the deceased’s property to which it applied.² This case was the subject of debate before being overturned on appeal by the Divisional Court. On appeal, the court found that while a will may contain a trust, which requires certainty as to the subject matter, the will, and the determination of what assets will be within its application is not, in itself, a trust.³ This decision provided clarity to estate lawyers with respect to primary and secondary wills and provides them with the opportunity to continue using multiple wills in a way that best serves their clients.

Articles written by Stacey Staios:

Ontario Executor Checklist
Estate Considerations
Locating a Missing Beneficiary
Power of Attorney Disputes
Independent Contractor vs. Employee
Family Law Litigation - Part 2
Family Law Litigation - Part 1
Family Status Discrimination
Social Media Policies in the Workplace
Calculating Equalization Testamentary Capacity Aggravated and Punitive Damages Leaves of Absence in Ontario Co-Parenting In The Age of a Pandemic Corollary Relief Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?

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References

¹ Milne Estate (Re), (2018) ONSC 4174.
² Ibid.
³ Milne Estate (Re), (2019) ONSC 579