Estates & Wills & Trusts

TLA intervenes in appeal over Superior Court wills decision

By Staff

The Toronto Lawyers Association (TLA) is looking forward to an appeal decision that will provide clarity for the Ontario bar and the association's hundreds of members who practise in the estates and trusts area, says executive director Joan Rataic-Lang.

The lawyers association recently acted as an intervenor in the Divisional Court appeal heard at Osgoode Hall by a panel that included justices Frank Morocco, Katherine Swinton and Harriet Sachs.

“The TLA sought and was granted intervenor status because of the importance of this issue to our members. Our counsel, well-respected senior estates practitioners, provided historic and academic perspective for the court,” Rataic-Lang tells

At the centre of the appeal is a recent Ontario Superior Court judge's ruling that brought into question the use of multiple wills.

The TLA’s director says the association’s counsel, led by Ian Hull and Tim Youdan, stressed to the panel the need to clarify the validity of using allocation clauses in multiple wills.

The use of this common estate planning technique allows an estate trustee to have some form of control over whether a particular asset is governed by the primary or secondary will.

Privacy, speed of administration and reduced taxes payable under the Estate Administration Tax Act are significant advantages provided to testators who execute more than one will at the same time, the TLA legal team told the panel of justices.

Rataic-Lang adds that counsel further submitted that, contrary to the judge's findings, an estate trustee has inherent discretionary power to allocate assets between a will that is filed for probate and one that passes assets without probate.

“We hope the decision will provide clear direction for will-drafting solicitors in regard to the discretion of an estate trustee to allocate assets to be passed in a will filed for probate and one that is not filed,” she says.

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