Court Outlines Requirements For Double Wills

Written on behalf of Arbesman Hamilton LLP

It’s natural for people to want to structure their wills in a way that allows their property to be distributed amongst their beneficiaries as quickly and as affordably as possible. The probate process can sometimes mean that property is not distributed until all of the matters relating to the estate are resolved. Occasionally, people might write “double wills” which is essentially a primary will and a secondary will. The primary will would deal with aspects of the estate that require probate, while the secondary will would address assets that can be distributed without the need for the probate process, therefore minimizing fees, taxes, and wait times. But who gets to decide what falls in the primary will and the secondary will? The Ontario Superior Court of Justice recently addressed whether the executor can do so.

The background

The husband and wife died on October 2, 2017, each leaving a primary and secondary will dated May 10, 2016. Each of their wills granted the executors the discretion to determine what property is subject to each will. The court explained the structure of the wills, writing,

“The Primary Will settled upon the executors ‘all property owned by me at the time of my death EXCEPT…. [certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for a transfer or realization thereof’ [emphasis added].  The Secondary Will, expressly not revoking the first, settled upon the executors ‘all property owned by me at the time of my death INCLUDING … [certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for the transfer or realization thereof.’”

 

Essentially, the primary wills included all property, with the exception of specific assets, and the exception of other any other assets to be determined by the trustees. The secondary also covered all property, but this time including certain assets as and any other assets to be determined by the trustees.

The issue

The problem with the wills is that they both explicitly included “all property,” but the primary will allows anything and everything to be excluded. There are some requirements needed for a will to be valid, one of them being that it must demonstrate certainty in what it covers, specifically

  1. certainty of intent to create the trust;
  2. certainty as to the subject-matter or property committed to the trust, and;
  3. certainty as to the objects of the trust or the purposes to which the property is to be applied.

In the case of multiple wills, the court wrote, “If multiple wills are to be employed – and I fully recognize that these are a quite common and normally unobjectionable estate planning tool – the property that is subject to each must be ascertainable objectively based upon the expressed intent of the testator without regard to discretion of the Estate Trustees exercised afterwards. That is simply not the case here.”

The court’s decision

In this case, the court found the primary wills to be invalid since they fail to describe, with certainty, any property that is subject to them. By excluding any assets that the trustees decided to remove from it. The secondary wills, however, include all of their property. As such, the secondary wills were able to stand while the primary wills were not.

The best way to guarantee that your estate is handled according to your wishes is to engage in proactive estate planning with the assistance of an experienced lawyer. This includes writing a clear and concise will, designed to avoid uncertainty and vagueness. Arbesman Hamilton LLP provides unparalleled personal guidance for all of your estate planning needs. Please call us at 416-481-5604 or reach out to us online to book a consultation today.