Like many legal queries, the answer to this question is not black and white. However, it is a strategic approach some individuals use to address complex estate planning needs, particularly when they have assets in different jurisdictions or distinct types of assets that require separate handling. some individuals may even draft two wills to cater to the differing needs and circumstances of their beneficiaries.

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 valid will in a legal standing.

Breaking Down Complex Estates

Breaking down complex estates involves creating a clear, organized plan to manage and distribute diverse assets effectively. Property or assets can be subject to other laws in other jurisdictions. To ensure that these assets are managed and distributed according to local laws and to simplify the probate process in each jurisdiction, the individual may create separate wills tailored to each country's legal system.

Additionally, 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. The creating of a secondary will is an approach, often referred to as the "primary and secondary will strategy," is commonly used in estate planning to separate assets into two categories: those that must go through probate and those that do not.

The primary will typically includes assets that require probate, such as real estate and significant financial accounts. The secondary will, on the other hand, includes assets that do not need to be probated, such as personal items, private company shares, and assets held in joint tenancy or designated beneficiaries.

However, it is essential to consult with an estate planning attorney to ensure that the wills are correctly drafted and legally compliant, and that the division of assets aligns with the individual's overall estate planning goals.

What The Law Says About Secondary Wills

The legal framework governing secondary wills is primarily based on judicial interpretations of provincial legislation and court precedents rather than explicit statutory provisions. Ontario's Succession Law Reform Act (SLRA) governs the validity and execution of wills in the province but does not specifically address the use of multiple wills. Instead, the legality of secondary wills in Ontario has been established through case law.

Most 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. They will be able to provide you with legal advice on the current laws that are in place, and what rules apply when you create a primary and a secondary will.