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Estates & Wills & Trusts

Estates bar dealing with opposing multiple wills decisions

In the final instalment of a two-part series, Toronto wills and estates lawyer Mary Wahbi discusses opposing rulings regarding the use of multiple wills.

A recent Superior Court justice's ruling asserting the validity of multiple wills provides “a solid basis” to expect a contradictory decision will be overturned, Toronto wills and estates lawyer Mary Wahbi tells AdvocateDaily.com.

Wahbi, partner with Fogler Rubinoff LLP, says an appeal of Justice Sean Dunphy’s ruling against the validity of multiple wills has been heard in Divisional Court. No timetable has been set for a decision.

Encouraged by a ruling by Justice Michael Penny that runs contrary to his Superior Court colleague's, she is confident about the validity of multiple wills.

"The state of the law now is that we have two decisions, directly opposite from each other, from the same level of court," Wahbi writes in an in-house blog. "While only the appeal decision will finally settle the matter, (Penny's ruling) certainly provides a thorough, well-reasoned analysis of the issues and a solid basis on which to expect that (Dunphy's) will be overturned on appeal."

The use of multiple wills is a common estate planning tool in which primary and secondary wills are executed by the same testator.

She says they are used to smooth the estate administration process, and cut its cost, by separating assets requiring probate — which go into the primary will — from those that do not. These assets are dealt with in the secondary will.

Dunphy concluded that the primary wills in the case before him were invalid because they failed to “describe with certainty” the property that was subject to the will, instead leaving the decision up to the discretion of the trustees.

Dunphy also stated in his ruling that a will is a trust and that certainties must be in place at the date of death to make it valid.

The couple in the case, each of whom had primary and secondary wills, died in October 2017, designating their daughter, accountant and lawyer as trustees of their estate.

However, Penny ruled — in a case involving similar circumstances — that a will is not a trust and therefore should not have to satisfy ''certainties” in order to be valid.

He also found that it was inappropriate to make any determination about the validity of the powers given to the estate trustees because the issue was not before the court. 

"His (Penny's) statements were fairly strong and actually said (Dunphy’s ruling) is incorrect as a matter of law," Wahbi says. 

Shortly after the Dunphy decision came out, a notice from LawPRO, the professional indemnity insurer for Ontario lawyers, suggested lawyers “consider, where circumstances allow, notifying clients that may be impacted by this decision and the pending appeal, as well as the potential implications to them, including advising clients of the option to update their wills.” 

With tens of thousands of wills in law office vaults across the province, Wahbi says following that suggestion would have been impossible. However, the climate has calmed considerably since the Penny decision and the subsequent appeal of his colleague's ruling.

“Right now, the risk of having a will invalidated is smaller, and there’s a sense that other judges are not necessarily feeling bound by the ruling,” she explains.  

“The reality is that wills capture a moment in your life. You hope that it covers everything, but things happen, and circumstances change, which is why we advise people to update them every three to five years,” Wahbi adds.

Click here to read part one where Wahbi lays out her arguments for why the Dunphy decision was the wrong one.

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