This Blog was written by: Natalie Rouse
Most of us are familiar with the 1998 decision of Granovsky Estate v Ontario. The case has been the leading authority to permit planning with multiple Wills in Ontario. The use of multiple Wills is now an integral part of the estate planning process for business owners and professionals. It is a frequently used and effective strategy in order to save (and in some cases to eliminate) estate administration tax, as well as to provide privacy for company matters.
The Granovsky decision initiated a debate in BC about whether the same strategy could be used, as Probate fees are high in BC as well. In 2014, the Wills, Estate and Succession Act (WESA), came into effect in BC. The legislation served to consolidate the separate estate law acts into one. The wording used in the WESA can be interpreted to condone the use of multiple Wills. However, there has never been similar case law authority in BC…until now.
The 2017 Berkner (Estate) case is the first case to confirm the use of multiple Wills in BC!
Mr. Berkner was a private business owner. During his lifetime, his estate plan was structured to use two Wills. His daughter was named as the Executor in both Wills. His accountant was the alternate Executor. On his death, his daughter applied for Probate only on the primary estate. She renounced on the secondary Will and the accountant stepped in. He was able to deal with the private company interests without the need for Probate. This is estimated to have saved the estate around $40,000 in estate administration tax.
As part of the case, the Court referenced the Granovsky case as part of the decision-making process.
What I think is the most interesting difference between Ontario and BC legislation around the use of multiple Wills is that in BC, separate/different Executors must be named in each of the primary and secondary Wills. This is the reason Mr. Berkner’s daughter needed to renounce on the secondary Will. This goes back to the wording used in the WESA, which states in Section 122 that the applicant for a Grant of Probate is only obligated to disclose assets passing to him or her “in his or her capacity” as the deceased’s personal representative, rather than all assets passing to any and all personal representatives.
However, here are a few important points to consider as part of the multiple Will planning process in British Columbia:
- As the two Wills require different Executors, each Will should coordinate/set out the Executors’ powers and duties
- Whereas the Will that will be submitted to Court for Probate will be protected from a Wills Variation application under WESA upon the expiration of 180 days from the day Probate was granted, the non-Probated Will will never be protected from such a challenge (as the limitation period will never start to run without a Grant of Probate)