Written on September 23, 2016 – 8:30 am | by Darren Lund
The use of multiple wills for probate planning purposes has been part of the estate planning toolbox in Ontario for many years. The basic concept is straightforward. A separate will is prepared that governs those assets of the deceased for which the executors should not, based on current law and practice, require probate to administer (I will use the term “Secondary Will” for this will and “Primary Will” for the will that is probated). If all goes according to plan, the Secondary Will is not submitted for probate and accordingly estate administration tax is not paid on the value of the assets governed by the Secondary Will. While the concept is straightforward, there are particular drafting considerations that should be kept in mind, which I will consider over several blogs. In this blog I will look at the introductory clause and the revocation clause.
The introductory clause (i.e. “This is the Last Will and Testament of…”) should clearly state that the particular will is made in respect of specific assets. For example, the introductory clause to the Primary Will would refer to the fact that it is made “in respect of my Primary Estate (as hereinafter defined)” or similar language.
In the context of a single will, the revocation clause will revoke all prior wills and codicils made by the testator. However, in the context of multiple wills if such broad language is used in both wills then the Secondary Will would revoke the Primary Will. Accordingly, the revocation clause must be limited to prevent this outcome. There are different views on how to do this. Some practitioners use a broad revocation clause in the Primary Will to revoke all prior wills and codicils, and limit the revocation clause in the Secondary Will to prior wills and codicils made regarding assets that form part of the Secondary Estate. Other practitioners use a limited revocation clause in both wills. In other words, the Primary Will revokes prior wills and codicils made regarding assets that comprise the Primary Estate and the Secondary Will revokes prior wills and codicils made regarding assets that comprise the Secondary Estate.
The first method brings into focus a general concern about the effect of revocation clauses in multiples wills where a codicil is subsequently executed for one or both of the wills. The reason for the concern is the doctrine of republication. When a codicil to a will is executed, the will is “republished” as of the date of the codicil. If a general revocation clause (i.e. that revokes all prior wills and codicils without limitation to particular assets) is used in the Primary Will, for example, and a codicil to the Primary Will is later executed, then the republication of the Primary Will arguably revokes the Secondary Will. This is one reason why many practitioners prefer to use a limited revocation clause in both the Primary and Secondary Wills. Of course, the intricacies (read “potential minefield”) of the doctrine of republication can be avoided altogether by re-executing the complete Primary and Secondary Wills rather than amending them through codicils. From this writer’s perspective, the nominal extra time it will take to re-execute complete wills is a more than prudent investment. This also has the usual benefits of avoiding codicils, such as avoiding the proliferation of multiple documents and not having a record of the amendments that is readily accessible to beneficiaries who may not benefit from the changes.
Whichever form of revocation clause is used, each will should contain a declaration that cross-references the other will. That is to say, the Primary Will should contain a declaration that, subsequent to the execution of the Primary Will, the testator intends to execute a Secondary Will; the Secondary Will should contain a declaration that, prior to the execution of the Secondary Will, the testator executed the Primary Will and the Secondary Will is not intended to revoke the
Primary Will. Such statements of intention provide context for each will and clearly state the testator’s intention in the event a court is asked to interpret the revocation clause.
Where there are more than two wills, the same principles will apply, except that the declarations should be modified accordingly. To use the example of three wills: (a) the Primary Will should contemplate the subsequent execution of the Secondary and Tertiary Wills; (b) the Secondary Will should acknowledge the prior execution of the Primary Will, confirm it is not intended to revoke the Primary Will, and contemplate the subsequent execution of the Tertiary Will; and (c) the Tertiary Will should acknowledge the prior execution of the Primary and Secondary Wills and confirm it is not intended to revoke either of them.
To be continued…