Some interesting points Clare A. Sullivan of Aird Berlis made on this topic at the 2011 Six-Minute Estates Lawyer are:
· Conflicts – Consider whether the Trustee appointed in the Primary Will is the same as the Trustee appointed in the Secondary Will; if not, it may be that the solicitor can not act for both; it may also support the contention that the testator intended the assets under one Will to be dealt with separately from those governed by the other Will;
· Assets – Trustees should list the assets of each estate separately and confirm none of the assets of the secondary estate require probate; if such an asset requires probate, probate taxes will be payable on the total value of the secondary estate;
· Notification – The beneficiaries under each Will should be provided with formal notification of their interest in the estate and the probate application, and be given a copy of both Wills;
· Creditors – it the Trustees of each Will are the same one advertisement should suffice; separate ads or a joint ad should be considered if the Trustees are not the same; and
· Debts and Taxes –
· When there are different residuary beneficiaries under each Will, it is important for Trustees to ensure their actions cannot be construed as favouring one or over any other;
· If the Trustees and residuary beneficiaries are the same in each Will, and there is no doubt that there will be sufficient assets of both estates to pay all debts and taxes, there will be no issues regarding abatement; and
· If the residuary beneficiaries are different or there is not certainty that the residue of the two estates are sufficient to cover all debts and taxes, the Trustees will have to consider from which estate debts and taxes will be paid and which gifts will abate in which order. This may involve an interpretation of the Wills based on the testator’s intentions. If unsure or the beneficiaries disagree with the Trustees’ interpretation, it is advisable to seek the direction from the court.
Thanks for reading and have a great weekend!
Natalia R. Angelini – Click here for more information on Natalia Angelini.