Estate Planning

Multiple Wills Can Mean Multiple Certificates of Appointment

By Hull & Hull LLP

Primary and secondary wills are common enough situations for estates practitioners: one will for probate and the other for assets that can pass outside probate, to minimize estates administration taxes.  But what about situations with multiple wills requiring probate?

According to the October 8, 2008 endorsement of Mr. Justice Brown (court file no. 01-2725-08, no link available yet), where a testator makes 2 wills, each covering different assets, and each naming different executors, a local estates registrar can issue separate Certificates of Appointment of Estate Trustees to different executors limited to the assets referred to in each Will.

The endorsement closes with 2 "reminders" to applicants in multiple wills situations (I won't paraphrase):...

First "reminder":

 "If multiple wills exist and the executors plan to obtain probate for each, in addition to including an affidavit attesting to non-revocation as I described above, the applicants should ensure that the draft limited assets certificates of appointment which they submit each clearly identify the will for which probate is sought - e.g. the General Will dated X, or the Secondary Will dated Y, or the "will dated Z styled as the Limited Assets Will".  With each will clearly identified on the face of each certificate, the risk of any confusion arising from the issuance of separate certificates for each will should be kept to a minimum."

Second "reminder":

"If the application for a certificate involves a Granovsky-type situation where probate is sought only for one of the wills, it is important that the application materials contain a brief affidavit attesting that the non-probated will does not contain any provision revoking the will for which probate is being sought.  Such evidence will permit the Estates Office to be satisfied that the will for which probate is sought remains in force and governs the disposition of the assets enumerated in it: Re Kerzner Estate, 2008 CanLII 42020 (ON S.C.)."

I hope this helps.

Chris Graham

Full post as published by Toronto Estate Law Blog on November 11, 2008 (boomark / email).