Court Confirms Multiple Wills As Valid Probate Planning Device

For months now, estate planning lawyers in Ontario have been dealing with the uncertainty caused by the decision of the Ontario Superior Court of Justice in Re Milne Estate¹. In that decision, Mr. Justice Dunphy called into question certain techniques used by lawyers to reduce probate fees for clients. Those techniques typically involved drafting "multiple wills", that is, one will for assets that require probate and a separate will for assets that do not. The fundamental issue at the core of Mr. Justice Dunphy's judgment was his belief that a will is itself a trust. As such, it was his position that it was not possible to give the executors of multiple wills the ability to determine whether a particular asset of the deceased required a Certificate of Appointment of Estate Trustee (i.e., "Probate") or the power to allocate the assets between the probate and non-probate wills. In this analysis, such a power would invalidate a will because it creates uncertainty as to