Are My Primary and Secondary Wills Still Valid?

Are My Primary and Secondary Wills Still Valid?

You may have heard about a recent Ontario court decision that brought into question the validity of Primary and Secondary Will planning. LawPRO, the general professional liability insurer for Ontario lawyers, has recommended reaching out to clients that are impacted by this decision.

We would like to assure our clients that if your Primary and Secondary Wills were prepared by our firm that your Wills are not impacted as they do not contain the catch-all clause that was the subject of this recent decision.

The decision at issue is a September 11th, 2018 decision of the Ontario Superior Court of Justice in Re Milne Estate. The decision of the court is directed to Primary and Secondary Wills where the executor has discretion about whether certain assets form part of the Secondary estate. The court held that the Primary Will was invalid because it contained a catch-all clause that relied on the executor’s discretion to determine which assets were part of the Primary estate. The result was that all assets were subject to estate administration tax (commonly known as probate tax) under the Secondary Will. The decision is currently under appeal.

Our firm has always taken a cautious stance with respect to the courts’ or the Ontario government’s view with respect to the issue of what assets form part of the Primary and Secondary estates for probate avoidance purposes. For this reason, we have avoided using language in our Primary and Secondary Wills that rely on the discretion of the executor, and thus we have no concerns regarding the impact of this decision on our client’s Primary and Secondary Wills.