Dual and Multiple Wills: What They Are and When You Need Them

What is a Dual or Multiple Will Structure?

A dual will or multiple will structure is an estate planning tool where a testator (an individual who makes a will) uses multiple distinct wills to manage different types of assets.

In situations where multiple wills are utilized, they are commonly referred to as “primary” and “secondary” wills, or “public” and “private” wills, or “personal” and “corporate” wills.

A “primary” will generally covers assets that require probate, including but not limited to, certain real property assets, financial accounts and personal property, all of which involve formal transfer to beneficiaries by institutions that “hold” or “govern” the transfer of such assets.

In contrast, a “secondary” will deals with “non-probatable” assets, including but not limited to shares held in private corporation, real property which bears a “first dealings exemption” and other forms of property that do not involve formal transfer as noted above.

Generally speaking, the dual will structure is utilized in Ontario for the purpose of reducing (or eliminating) estate administration tax (“EAT”), which is payable pursuant to the Estate Administration Tax Act, 1998, SO 1998, c 34, and which is often colloquially referred to as the “probate fee”.

For context, EAT is calculated based on the total current market value of the estate. In 2020, the calculation was changed to exempt the first $50,000 of assets in the estate, as such, for estates with a value of $50,000 or less, payment of EAT is not required.¹ However, for estates valued over $50,000, EAT is calculated as $15 for every $1,000 (or part thereof) of the value of the estate^.2 For ease of use, the Ontario Ministry of Finance offers the following online tax calculator, to estimate the EAT owed by an estate.

In addition to the benefits related to the elimination of EAT considerations, employing a dual will structure may provide additional advantages including streamlining the distribution of assets and affording confidentiality and privacy benefits, which will be explored further in the forthcoming sections of this blog.  

Typical Applications for Dual Will Structures

Real Property with First Dealings Exemption

The first dealings exemption is the result of a shift from a paper/physical documentary registration system related to property ownership (Registry Act), to a fully remote digital registration system (Land Titles). The conversion of properties from the Registry system to the Land Titles system began in the 1990s and continued until about 2010.

Beyond the administrative and efficiency improvements that have flown from this transition, one key impact of this change related to estate administration is the requirement that all real estate must now be probated prior to being transferred. In the context of what is often one of the estate’s biggest assets, the probate requirement can trigger a substantial EAT obligation. By contrast, under the previous Registry Act system, probate was not required, thereby bypassing any EAT.

Amongst other criteria explored in greater detail below, the first dealings exemption applies when a property which was originally registered under the Registry Act and later converted to the Land Titles system, is being transferred for the first time since that conversion. Importantly, as detailed above, in situations where this exemption applies to real property, it allows the same to be dealt with pursuant to the rules in the Registry Act, where probate is not required to deal with real property.  

As such, from an estate planning perspective, the financial savings can be significant in cases where a secondary will is utilized to deal with a non-probatable real property asset that falls under this exemption.

Criteria for Exemption

For the first dealings exemption to apply, the real property must meet the following criteria:

1. The property must have been acquired by the current owner during the Land Registry era (as detailed above). For the majority of real estate in Ontario, this means the property must have been purchased prior to the mid-1990s;
2. When the property was converted into the Land Titles system, the title must have been qualified as “Land Titles Conversion Qualified” in the system.
3. The property has not been “dealt with” (e.g., ownership title transfer through a sale, gift, inheritance, etc.,) since its conversion into the Land Titles system. While a transfer of ownership would constitute a “first dealing”, other transactions subsequent to conversion such as mortgage charges and discharges, notices registered on title, and survivorship applications may not be considered first dealings. In other words, if there was no transfer of ownership since the property was converted into the Land Titles system, one may be able to rely on this exemption. For example, in situations where spouses own property jointly, if one of the spouses dies, and a resulting survivorship application is registered on title to the said property, the surviving spouse will still likely have a first dealings exemption available to them.
4. The deceased owned the property at the time of their death, they died with a will, and the will that deals with the distribution of the property must not have been probated.

The first three criteria for the exemption can be assessed through an examination of the parcel register for the real property (obtained through a title search via Service Ontario’s website). The fourth requirement requires estate planning and implementation of a dual or multiple will structure, thereby preventing the property from being subject to probate and circumventing the administration of EAT. 

Shares in Private Corporations

Another common usage of the dual or multiple will structure in estate planning is in relation to the ownership of shares held in private corporations, which may be considered non-probatable assets.

By including such shares in a “secondary will”, financial savings may be secured, and in the case of large holdings, such savings may be substantial.

However, beyond the financial implications, further benefits are made available with respect to considerations like corporate succession. The probate process can take a considerable amount of time in the best circumstances and often various issues arise along the way, which slow the process further. When utilizing a secondary will, probate is avoided, and the corporate shareholdings can therefore be transferred quickly and seamlessly, resulting in minimal disruption to the business carried on by the respective corporation, if applicable.

In addition, a separate executor (separate from that named in the “primary will”) may be appointed to administer the secondary will. This feature allows for flexibility in the choice of executors who may bear differing areas of expertise (e.g., business acumen) or specific knowledge of the business to administer one’s secondary will assets effectively and efficiently. 

Lastly, confidentiality benefits are secured through the utilization of this process, as unlike the primary will (which becomes a matter of public record once probated), the secondary will (assets, beneficiaries, etc.,) are kept private and will be transferred without any public record of same.

Overall, the dual or multiple will structure may allow for a more targeted and customizable approach in estate planning in relation to corporate succession.

Personal Effects

In addition to dealing with properties with first dealings exemptions and shares held in private corporations, secondary wills can be used to deal with the transfer of certain personal effects and household items.

For example, if one holds an expensive art or jewelry collection, these assets may be distributed via a secondary will, avoiding the formal probate process and the application of EAT.

Additionally, proceeding with the dual or multiple will structure in this instance, will avoid the appraisal/valuation process that would otherwise be required for these assets. Where probate is required, estate representatives must be able to demonstrate the fair market value of the assets at the time of the testator’s death.³The valuation process may also be complicated and contentious, based on various factors including the type and rarity of an asset. These valuation processes often require the assistance of a professional and duly qualified appraiser, which may add further time and cost to the estate administration process.

Can You Have More Than Two Wills?

In certain circumstances, it may be appropriate from an estate planning perspective to consider utilizing more than two wills.

For example, in a situation where a testator uses a primary will solely for assets requiring probate, and a secondary will for shares in private corporations and first dealings properties, it may make sense to utilize a tertiary will for something like a foreign asset or various other types of property requiring distinct instruction and treatment based on specific considerations and objectives. Overall, there is inherent flexibility in employing a multiple will structure in estate planning, and these considerations can extend beyond a primary and secondary will. As explored above, when used correctly, this structure can serve as a valuable tool to achieving the goals of the testator/testatrix. 

In situations where multiple wills are contemplated, it is important to consult and plan carefully with one’s legal counsel. Amongst other considerations, ensuring that the wills are signed concurrently and importantly confirming that each will contemplates the other(s). Further, the wills should not revoke one another, and there may be additional procedural requirements unique to each applicable jurisdiction. These planning and drafting considerations become increasingly important as the number of wills utilized increases.

Conclusion & Caution

Although utilizing a dual or multiple will structure will typically circumvent the probate process and the administration of EAT, one should be aware that certain situations may still warrant probating a secondary/tertiary will. This most commonly occurs where the validity of the will is challenged or where a third-party purchaser or mortgagee/lender requires a formally certified will, before proceeding with a purchase/transaction.

In addition, drafting and planning failures such as inconsistent or conflicting language in relation to the primary will, or overlapping assets, can invalidate the will and/or require the secondary will to be probated.

Nonetheless, as explored throughout this blog, the dual or multiple will structure represents a powerful estate planning tool that can afford many crucial benefits with effective planning, drafting, and implementation.

If you have any questions related to estate planning and administration and how to best achieve your goals, please reach out to the experienced team of Wills and Estates lawyers at SV Law.

¹Ibid.