BY VALERIE DYE
Although persons generally have only one valid will at a given time it is not uncommon for persons to have multiple wills. This has become quite common in Ontario especially after the 1998 decision of Granovsky Estate vs. Ontario. In most of these cases multiple wills refer to the existence of two wills referred to as the primary will and the secondary will. But why bother to have two wills in the first place? The most common reason for having a primary will and a secondary will is to avoid the payment of excessive estate administration tax. Some assets can be passed on to beneficiaries without the need for probate. Such assets include, but are not limited to shares in private companies, jewellery and art.
In Granovsky Estate vs. Ontario the testator had a primary will which disposed of assets valued at just above three million dollars and a secondary will which disposed of shares in a private company which were valued at twenty five million dollars. The primary will was submitted for probate but the secondary will was not as the shares in the company could be transferred without the need for probate. This brought about significant savings on estate administration taxes.
Naturally, the Ontario Government was not happy about this as failure to probate the secondary will resulted in a loss of estate administration tax of approximately $375,000.00. The Crown challenged the fact that the secondary will was not probated and argued that the provisions of the Estates Act required that the whole of the deceased’s Estate be submitted for probate. The Court disagreed with the Crown’s arguments and held that there was no need for both wills to be probated since the assets under the secondary will could be transferred without the need for probate.
The Granovsky case has become the authority for the fact that all wills do not have to be submitted to probate and that estate administration taxes are payable only on the value of the assets mentioned in the will which is submitted for probate.
Although the Granovsky case dealt with an obviously wealthy Estate, multiple wills are not only for the rich. Whenever a testator has assets that can be transferred without the need for probate he or she should consider disposing of these assets in a separate will from the one that will be probated.
Multiple wills may also be used in cases where the testator has assets in various jurisdictions. By having separate wills for assets in separate jurisdictions the appropriate will can be submitted to the appropriate jurisdiction.
If the intention of the testator is to have several wills it is important when preparing the wills to state words to the effect that one will does not revoke or override the other will. If the purpose of having multiple wills is to deal with assets in different jurisdictions it is important to state clearly that the will disposes of assets only in that jurisdiction and does not revoke the other wills.
Although the use of multiple wills is becoming more common there are some problems associated with their use. For instance, if a separate Estate Trustee (Executor) is named for each will this will result in two different persons being in charge of one estate. This may lead to confusion and even litigation. As such it is important to weigh the advantages of having multiple wills against the risk of causing confusion in administering the Estate.