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.
