Will Trends for 2026: Mutual Wills and Multiple Wills

We all know a version of this story: A and B have a 40 year marriage with 3 adult independent children. A dies. B remarries C. B changes their will to leave everything to C. B dies. C changes their will to leave everything to C’s children. A and B’s children receive nothing. We will call this the Step Parent Scenario.

In Alberta, once our children are independent adults, we have no legal obligation to provide for them in our estate plan. But it is nonetheless painful for A and B’s children to be totally disinherited. And A may be out there somewhere rolling in their grave.

children. Not second spouses. 

To address this worry, there are at least three options:

c. Mutual Wills

In response to some of the issues encountered with spousal trusts, and in an effort to find a middle ground between blind faith and controlling from the grave, a third, ‘in between’ approach is gaining in popularity. Mutual wills have, historically, been out of fashion and often criticized for their attempt to merge three areas of law (contracts, trusts and wills) with commensurate uncertainty. But as they say, necessity is the mother of invention.

Mutual wills require the following:

Both wills include clauses explicitly confirming they are mutual wills (as opposed to mirror wills, which would be the ‘blind faith’ wills above).

The benefits of the mutual wills approach are that there are some restraints on the surviving spouse, with repercussions if they breach the terms of the contract and the trust, but it is not as heavy handed or paternalistic as the full spousal trust.

The weak points of the mutual wills are firstly that the law is unclear as to whether the disinherited beneficiaries have a right to watch over or have a say in D’s handling of the assets during D’s lifetime. Likely D has the right to use all assets in the manner that D and E enjoyed together, so D has wide discretion to dissipate the estate. The mutual will planning is often not shared with D and E’s children before D or E’s deaths, so the children may not even know that they may have the ability or right to monitor D’s handling of the assets.

Secondly, when do the children have a right to bring a claim? During D’s lifetime if they catch wind that the estate is being dissipated, or that D has changed his will and altered the distribution of E’s ‘half’ (and how would they know that?). Or does their claim only arise on D’s death, at which time, the assets may be long gone and therefore practically speaking it may be too late?

At a practical level, the ideal answer is to involve the children in the planning, so they are aware of the mutual wills contract and the trusts that arise as a result. Further, perhaps the wills include some level of accounting to the children after one spouse dies, or loses their capacity, to maintain a level of transparency. The mutual wills agreement should be very clear which assets are subject to which rules, and who can change (or not change) the distribution of those assets. We might even consider clarifying what we mean by allowing the suriving spouse to use the assets in the same manner the couple enjoyed during their joint lifetimes.

Ironically, the more fail safes we put in place to shore up the issues with mutual wills, the closer they become to a spousal trust, with all of its inherent criticism such as controlling from the grave and inviting hawkish monitoring from the remaindermen.

The end result is that there is no perfect tool for second marriages. Discussing these three options is a worthy pursuit, ideally coupled with a marriage agreement, particularly in second marriages. Each client will have a different comfort level with how they balance giving their surviving spouse autonomy versus protecting the estate for their intended ultimate beneficiaries. Mutual wills are not perfect, but they are a potential middle ground between blind faith and controlling from the grave.

There was a popular ad campaign in the 1970’s with the catchy slogan “Cars cost less in Wetaskiwin”. A similar slogan could be used for Alberta in the estate planning context: “Death costs less in Alberta.” Our probate fees are capped at $525, one of the lowest in Canada. Conversely, BC probate fees are roughly 1.4% of the estate assets, and Ontario is 1.5%. While we are domiciled in Alberta (a legal term similar to residence, but requiring good evidence of intention, not just calendar days) then Alberta laws regarding how much probate fees we pay will govern our Alberta land, and our non land assets such as Canadian bank accounts, investments and private company shares (collectively, everything but land is called ‘moveable’ property for probate purposes). If we move to BC, but keep our Alberta land, our domicile is now BC, and our moveable property (which moves wherever our domicile moves to) goes with us to BC. Our moveable property will now be subject to BC probate fees. Our Alberta land stays, of course, in Alberta, and will be subject only to Alberta probate fees.

It is common for Albertans to carry out their successful entrepreneurial or professional lives in Alberta, and at some point become smitten with the warmer climes of BC. Often clients purchase BC property with the hopes of one day retiring there. As long as their domicile remains Alberta, only their BC land will attract BC probate fees. But if retirement to  Kelowna or Vancouver Island is or is shortly becoming a reality, we can look to BC and Ontario to consider multiple wills as an estate planning tool to potentially reduce probate fees. (Alter ego trusts and joint partner trusts are also popular, but are beyond the scope of this article. See our article on BC/Alberta planning for more details).

Multiple will have been in use in Ontario since 1998, and have been permissible in BC since 2014. The concept is relatively simple: we create two wills, one for probate property, and one for non probate property. We allocate as much of the property as we can to the non probate will, thereby reducing probate fees. Both distribution clauses are identical, so the ultimate beneficiaries are the same. For BC multiple will planning, the executors of each will must be different. For Ontario, they can be the same.

For example, if A and B started and built their business in Alberta, and reside in Edmonton, they are domiciled in Alberta. At some point, they purchase their dream property somewhere in BC. As long as they continue to be domiciled in Alberta, then only the BC land will attract BC probate fees. But if they move to BC, they may wish to update their estate planning to include 2 wills, whereby they would carve out at minimum the private company shares, which would be administered and distributed according to a non probate will, since neither Alberta or BC corporate registries require probate for transfer of private company shares. Often a considerable portion of A and B’s wealth is tied up in ownership of their business, so this will save them considerable probate fees.

It should be noted that if there is a challenge to A or B’s will(s) then probate of the non probate will may still be required and the cost savings will be nullified. Further, no limitation period begins to run on challenges to the non probate will until an application for probate is filed. So if there are issues, an executor of a non probate will may still determine it is prudent to apply for probate to flush out any claims.

Much is written about avoiding probate, and much of the content comes from BC and Ontario, where the probate fees are much higher than Alberta. So as long as our clients’ domicile stays in Alberta, their Canadian moveable property and their Alberta land will be governed by Alberta law for probate fee purposes, and subject to probate fees of $525, which negates the economic rationale for multiple wills. But as trusted advisors, it behooves us to educate our clients about updating their planning if or when they catch the BC fever and take the leap to move further west.