A recent decision of the Ontario Superior Court has called into question the validity of certain language frequently used in multiple Wills in Ontario (often referred to as "Primary" and "Secondary" Wills), and therefore the validity of the Wills themselves. These Wills have typically been used for the purpose of reducing estate administration tax (common referred to as probate fees), on the death of an individual.
The issue of concern in the case of re: Milne was language in the Primary and Secondary Wills of the deceased that gave the executors discretion to determine which assets would be governed by the Primary Will, subject to probate fees, and which assets would be governed by the Secondary Will, and therefore not subject to probate fees. The result of the exercise of such discretion is the reduction in overall probate fees payable by the estate.
The case is being appealed, but a decision is not expected for several months.
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