Multiple Wills have been utilized for multi-jurisdictional estate planning for a very long time. More recently, multiple Wills have been utilized in the Province of Ontario, for managing Probate Fees which are calculated on the value of the estate assets subject to the Grant of Probate. In short, the idea is to utilize more than one Will to segregate out the assets that must be subject to the Grant of Probate (and therefore subject to the applicable Probate Fee), from those assets that do not require the Grant of Probate, resulting in the elimination of the 1.4% Probate Fee that would otherwise be payable on the value of those assets.

The Canadian Estate Planning Guide, state:

“Multiple wills are also used in some provinces as a means of reducing probate tax. Simply put, the basic strategy is to sequester assets that do not require probate in one will, while dealing with the remaining assets that do require probate in a second will. Of course, only the second will is probated, thereby saving probate tax on the assets covered by the primary will…”.

But it has been an open question as to whether multiple Wills, used for this purpose, are valid in British Columbia?  That matter has now been settled, by the Supreme Court of British Columbia in Berkner (Estate), 2017 BCSC 619, where the court referenced the Ontario case law, which provided:

“The estate planning of having multiple Wills in the form of a Primary Will and a Secondary Will which take effect on death is, in my view, simply another example of how a careful testator plans to have her or his estate pay the least possible probate fees on death. There is no legal obligation to obtain probate and, as I have noted above, limited grants are permissible. If the directors of the private companies in which the deceased owns shares or has an interest at death do not require the formal grant from the Court to deal with the transmission of the assets and are prepared to deal with the estate trustees named in the Secondary Will, why then should the estate have to pay probate fees on those assets?”

In short, the multiple will option has received positive judicial recognition in the Berkner (Estate) case, and this effective planning tool is available for reducing Probate Fees.  We would note, that there are other issues that need to be carefully considered in this regard. If you require legal advice or are interested in any aspect of multiple will planning, please contact Paul Barbeau at (604) 688-4900 ext 201, or email me or connect with me on LinkedIn.