The following article was written by Bilal Mirza, a member of our Gift Planning Services Committee:
It is generally accepted as a good practice by estate practitioners for an individual to have only one will at any given time. The Succession Law Reform Act (Ontario) provides that executing a new will automatically revokes any previous will and lawyers usually advise clients to destroy the earlier document once a new will is signed.
Notwithstanding the above, dual wills or multiple wills are becoming an increasingly popular estate planning technique to reduce the estate administration tax (probate fees) payable by the estate when the estate trustee applies to a court for the certificate of appointment (probate).
Certain estate assets require the certificate of appointment in order to complete to their administration while other assets may not require the certificate at all. The purpose of the multiple wills is to list all the probate assets in the primary will and include all non-probate assets in the secondary will. The primary will is then submitted to court and probate fees is calculated only on the basis of estate assets comprising the primary estate thereby saving the incidence of estate administration tax on all secondary estate assets.
The Ontario Courts first recognized multiple wills as a valid estate planning technique in the case of Granovsky Estate v. Ontario in 1998 and since then there has been a steady growth in the use of such wills by estate lawyers.
Additionally, it may also be beneficial to have multiple wills where a person owns assets in more than one jurisdiction and for such a person to have a local will in each of these jurisdictions. This saves the estate considerable expense and the logistical challenge of having the certificate of appointment resealed in each foreign jurisdiction.
Keep in mind that if these wills are not carefully drafted, with adequate knowledge of the local applicable laws, then it may give rise to unwanted consequences such as duplicated bequests or even more catastrophic results such as the two wills rendering each other invalid and the deceased having no valid will at all at death! The Ontario Superior Court of Justice dealt with similar issues in the 2014 case of McLaughlin v. McLaughlin et al.
You should speak to your estate lawyer if you think multiple wills may be of benefit to your estate plan and please do not try this at home!
Bilal Mirza, LL.B., LL.M.
SimpsonWigle LAW LLP