Creating Multiple Wills in Ontario

By Merovitz Potechin on Wednesday November 27, 2019.

The creation of multiple wills may seem complicated during the estate planning process, however it offers many advantages as a tool to handle different assets and to avoid certain fees. Let’s take a look at some of the basics regarding multiple wills in Ontario.

Primary and Secondary Wills

When a testator has multiple wills, they are said to have a primary and secondary will. The benefits of having multiple wills in Ontario are that you can reduce the tax payable under the Estate Administration Tax Act, 1998 (because probate will only be required for the specific assets that cannot be transferred without probate and not for all assets) and also create privacy for certain assets.

Multiple wills will usually include allocation clauses for the trustee to have the power to decide which assets can fall within the primary will (requiring probate) and which fall under the secondary will (remaining private and not subjected to probate).

What is Probate?

Probate is the process through which a will is determined to be valid or not. Most wills in Ontario will need to be submitted for probate, where the court can work on any confusion between multiple documents and determine validity.

Multiple wills allow the reduction of the estate administration tax because probate will only be required for those assets that cannot be transferred without probate. Without multiple wills, all assets will go through the probate process and the tax would need to be paid upon the entire estate.

Assets typically dealt with in a primary will:

• Assets registered in a single name such as:
  • individual non-registered investment, savings and chequing accounts;
  • real property registered solely in the name of the testator; and
  • personal property (e.g. automobile, boat, plane) registered solely in the name of the testator;
• Registered plans and insurance where a beneficiary is not named or the estate is the named beneficiary.

 Assets typically dealt with in a secondary will:

• Assets that do not have a registered title;
• Shares in private corporations and related shareholders’ loans and receivables;
• Household goods and personal items (except those held in a safety deposit box which may require probate to access the box); and
• Unsecured debt.

How many wills can a person have in Ontario?

Because foreign assets are dealt with in the foreign jurisdiction and may be subject to estate administration tax there, some testators with foreign assets have a third or fourth will to deal with each of these foreign assets separately. In fact, an individual may make any number of Wills to deal with different types of property, provided these can each be shown to be distinctly separate documents that do not conflict with or revoke each other.

Estate planning in Ontario

Creating your last will and testament can involve a lot more than just one document listing all of your assets. Multiple wills are an important tool that can save your estate money when it comes time for them to be submitted for probate. If you are looking to create your will or if you have questions regarding multiple wills in Ontario, contact wills, trusts and estates lawyers at Merovitz Potechin LLP.