Multiple Wills in Ontario: A Probate-Planning Strategy

If you own shares in a private corporation — a family business, a holding company, or a professional corporation — multiple wills may be one of the most effective estate planning tools available to you. Done correctly, a multiple-will structure can remove significant asset value from the calculation of Ontario's estate administration tax, saving your estate (and ultimately your beneficiaries) a meaningful sum.

Multiple wills in Ontario are a well-established technique, recognized and approved by the courts. But they require careful drafting and legal oversight. A misstep can result in both wills being invalidated, or in the tax-saving goal being lost entirely.

The Core Problem: Estate Administration Tax

When your estate trustee applies to the Ontario Superior Court for a Certificate of Appointment of Estate Trustee (what is commonly called probate), the court charges estate administration tax on the value of the estate being administered. As of writing, this tax is calculated on a graduated scale; for large estates, it can represent a significant cost. Verify current rates with a lawyer.

The tax applies to the value of assets that require the Certificate of Appointment to administer — typically assets held in your name alone, such as real estate, bank accounts, and publicly traded investments. Assets that transfer by other means — jointly held property, assets with named beneficiaries — generally do not require probate and are not subject to the tax.

The key insight behind multiple wills: not all assets require a Certificate of Appointment to transfer. Shares in a private corporation are the most common example. A private corporation's share registry is maintained by the corporation itself, and the transfer of shares on death can often be effected by the estate trustee presenting the will, without the court's involvement. If those shares never require probate, they do not need to be included in the estate value on which the tax is assessed.

How a Multiple-Will Structure Works

A testator (the person making the will) creates two separate wills:

The Primary Will covers assets that will require probate — real estate held in the testator's name alone, bank accounts, publicly traded securities, and other assets whose transfer requires third parties (such as banks or the land registry) to see a court-certified will.

The Secondary Will covers assets that do not require probate to transfer — most commonly shares in privately held corporations. The secondary will is not submitted to the court, no Certificate of Appointment is sought for those assets, and the estate administration tax is not paid on their value.

The estate trustee named in both wills (often the same person) uses the primary will to obtain probate and administer the public-facing assets, while using the secondary will privately to deal with the private company shares and other non-probate assets.

The Tax Saving in Practice

To illustrate the concept without inventing specific numbers: if a testator's estate consists largely of shares in a family holding company worth several million dollars, and those shares are covered by a secondary will, the estate administration tax is assessed only on the primary estate (perhaps real estate and bank accounts), not on the value of the private company shares. The difference in tax can easily run to tens of thousands of dollars or more for a large estate. Verify the current tax rates and thresholds with a lawyer to calculate the potential saving in your specific circumstances.

Drafting Cautions: What Can Go Wrong

Multiple wills are powerful but technically demanding. Here are the most significant risks:

Accidental Revocation

Under Ontario law, making a new will generally revokes all prior wills. If the two wills are not carefully worded, the primary will may revoke the secondary will (or vice versa). Both wills must include specific language clarifying that each stands independently and that neither revokes the other.

Unclear Asset Allocation

Each will must clearly define which assets it covers. If an asset could arguably fall under either will, there may be confusion about whether probate is needed for it, and in a worst case, litigation between the estate trustee and beneficiaries. The asset definitions should be drafted with precision.

Evolving Asset Mix

If you create a multiple-will structure and later acquire new assets, you need to review which will those new assets fall under. An asset that was clearly in the "no probate needed" category when the will was drafted may require probate if circumstances change. The structure should be reviewed whenever significant new assets are acquired.

Not All "Private" Assets Qualify

The multiple-will strategy works because some assets can be transferred without presenting a court-certified will. This depends on the nature of the asset, the corporation's articles and shareholders' agreement, and the willingness of the relevant parties to accept the will without court certification. It is not a universal rule. A lawyer should confirm that the specific assets intended for the secondary will can, in practice, be dealt with without probate.

The Shareholders' Agreement May Control

Where a shareholders' agreement contains buy-sell provisions, rights of first refusal, or other transfer restrictions, the agreement may govern what happens to shares on death — sometimes regardless of the will. The multiple-will structure must be considered alongside the shareholders' agreement, and ideally both documents are reviewed at the same time.

Who Benefits Most from Multiple Wills?

Multiple wills are most valuable when:

• The estate includes shares in one or more private corporations with significant value
• The owner has some flexibility over how assets are distributed and titled
• The estate is large enough that the tax saving justifies the additional complexity and drafting cost
• The estate trustees and the corporation's directors understand the structure and how to implement it

For smaller estates or estates with no private company holdings, a multiple-will structure may add complexity without meaningful benefit. Your lawyer can advise whether the structure makes sense for your circumstances.

Multiple Wills and the Rest of Your Estate Plan

A multiple-will structure does not exist in isolation. It should be part of a broader estate plan that considers:

• Beneficiary designations on registered accounts and insurance (which also avoid probate independently)
• Joint tenancy between spouses for the matrimonial home (where appropriate)
• Corporate succession planning — who takes over the business, and how shares are valued
• Life insurance to fund tax liabilities or equalize inheritances
• A shareholders' agreement that coordinates with the will rather than conflicting with it

Frequently asked questions