This blog contributed by Mohena Singh, Associate @ Fasken LLP
A long-time practice of estate planners has been preparing multiple wills for clients to minimize the amount of estate administration tax an estate must pay. The general idea of a primary and secondary will is to exclude property that does not require probate from the primary will so that the total value of assets requiring probate is reduced. However, if the wills are not drafted effectively, then the administration of the estate can become a complex process to navigate.
In the case of Gordon v Gordon 2022 ONSC 550, the testator executed two wills, a Primary Will and a Limited Will on the same day. After his death, the estate trustees of his estate filed their application for a certificate of appointment [aka ‘letters probate’] limited to the assets referred to in the Primary Will and were declined twice by the court. They then brought an application to seek rectification of the Wills.
The Primary Will began by addressing revocation. Paragraph 1 stated, “I revoke all Wills and Codicils previously made by me, save for my Limited Will that I have also executed this day”. The one paragraph of the Primary Will that brought upon this application was titled “Transfers to Estate Trustee” and stated as follows:
“I give all my property to my Estate Trustee upon the following trusts” [emphasis added].
The Primary Will then went on to deal with personal property, debts and death taxes, conversion of assets and specific bequests.
The Limited Will also began with a revocation clause and was similar to the one in the Primary Will. The next paragraph went on to deal with limited property and said the following:
“I declare this to be my Limited Property Will. I refer to this Will as my “Limited Property Will” because I am making another will on this date referred to as my “Primary Will”, which Primary Will is not to be revoked by this my Limited Property Will (nor is my Limited Property Will to be revoked by my Primary Will); rather my Limited Property and Primary Wills are intended by me to be complementary to one another. Subject to the terms set out hereafter, this my Limited Property Will addresses the disposition of only the assets described herein. In this Limited Property Will, the term “Will” shall mean Limited Property Will and the term Property shall mean…”
The issue arose from the ambiguity in the language of both the Primary Will and the Limited Will, mainly because of the use of the phrase “all my property” in the Primary Will and the intention of the testator as to how the “property” as set out in the Limited Will was to be distributed.
Multiple wills are commonly used to organize a testator’s affairs so that assets can be properly allocated to either property that requires probate or property that does not. The court used the affidavit evidence of the drafting lawyer to determine that the Limited Will was executed immediately after the Primary Will and it was the deceased’s intention for both Wills to be read harmoniously. Most importantly, it was the deceased’s intention that the Primary Will govern the distribution of all property other than that which fell within the definition of property under the Limited Will.
The court found that if there was any inconsistency in terms of the subject-matter of the two Wills, than the Limited Will revoked the Primary Will only as to those parts in which they were inconsistent. The court found that no rectification was needed to the Limited Will to make sense of the Primary Will.
This case serves as a reminder as to the importance of language and accurately defining the assets of the client’s estate that are to be governed by each will, when drafting multiple wills. In order to avoid any ambiguity, it is necessary that specific language be used so that all wills of the testator can be read harmoniously. Even as simple as one word in a will can make all the difference to the ease of administering an estate. It also serves as a useful reminder about the importance of clear revocation clauses. Typically the strategy is to have the Primary Will (i) revoke all former Wills that apply to the property governed by the Primary Will, (ii) apply to all property except the property governed by the Limited Will, (often referred to as the “Primary Estate”) and (iii) refer to the fact that a Limited Will will be executed after the Primary Will; and then the Limited Will would (i) revoke all former Wills that apply to the property governed by the Limited Will, and (ii) apply only to the property governed by the Limited Will, (often referred to as the “Limited Estate”). In this way you have clarity around the two wills operating together over all of the property forming part of the client’s estate.