In October 2018, we advised you of a decision of the Superior Court of Ontario that called into question certain language often used in circumstances in which an individual had executed two Wills, often referred to as a Primary Will and a Secondary Will. Specifically, the Court declared that the Primary Will could be declared invalid if it permitted the executors to use their discretion in determining which Will, Primary or Secondary, governs each particular asset.
The case went to appeal and on January 24, 2019, the Divisional Court allowed the appeal and overturned the decision of the lower court. The decision confirmed the validity of using Primary and Secondary Wills which contain clauses that give the executors the discretion to allocate assets between the Primary and Secondary Will on the basis of whether or not probate is required to deal with the particular asset.
If you have recently executed replacement Primary and Secondary Wills which removed the “discretionary” clauses from your previous Wills, or if you executed initial Wills which did not contain “discretionary” clauses after the Superior Court decision, you may wish to contact your lawyer to discuss executing new Wills which contain the “discretionary” clauses. If you have Primary and Secondary Wills which contain the “discretionary” clauses, no changes are required in respect of this matter.