A recent decision of the Ontario Superior Court of Justice (Re Milne) may affect the Wills of clients who have used multiple Wills to reduce probate fees. If you have Primary and Secondary Wills in place, this court decision may put that planning in jeopardy.
In the decision, the Court took issue with the ability of the Trustees, in their discretion, to decide which assets fall into which Will. While the use of multiple wills is still a valid mechanism, the wording of the Wills before the Court was found to invalidate the Primary Will in that case. The decision has been appealed to the Divisional Court on a number of grounds. The general consensus among senior estates lawyers is that the decision is incorrect and the hope is that the decision will be overturned. However, the appeal is not likely to be heard and a decision rendered for some time. In the meantime, certain Wills may be vulnerable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
