Like many legal queries, the answer to this question is not black and white. However, the most common reason for individuals create a primary will, and then a secondary will, is to avoid paying unnecessary probate fees. The other most common scenario is that secondary wills are used to breakdown down complex estates for executors and trustees.
It’s important to note that creating a secondary will is different than someone having two wills. A secondary will is done on purpose. If there is a question of multiple wills, then it becomes a question of which will should be upheld as the legal, valid will.
How do secondary wills help with probate fees and large estates?
- Breaking down complex estates: A property or asset may be subject to other laws in other jurisdictions. Or, alternative statutory rules may also apply (such as the Ontario Business Corporations Act, or the Canadian Business Corporations Act). Privately held corporate shares, property or assets that are not registered in the province or country where you live, or are jointly held, can all be examples of items you could list in a more detailed secondary will.
- Avoiding probate fees: Probate is the process of determining a valid will by the courts, and then giving the estate trustee powers to administer the estate, such as access to financial accounts and property. An estate administration tax is applied on items that require the probate process. If there are items that don’t require probate for administration (such as personal items), those could be listed in a secondary will.
What the law says about secondary wills
Recently, an Ontario court ruled that primary wills are invalid if they allowed the estate trustee to decide which assets fell into which will. This ruling impacts how primary and secondary wills could be used going forward. However, the Ontario Divisional court overruled this decision, and provided further clarity on how primary and secondary wills could be used.
If you have questions about creating a secondary will, it’s best to consult an experienced estates lawyer. He or she will be able to provide you with legal advice on the current laws in place, and what rules apply when you create a primary and a secondary will.