This past February, millions of Canadians contributed to their Registered Retirement Savings Plans (“RRSPs”). However, few may realize that those hard-earned savings might not go to their chosen beneficiary.
The British Columbia Supreme Court decision of Simard v. Simard Estate, 2021 BCSC 1836 (“Simard Estate“) released in September 2021, is a timely reminder of the reality and the risks of benefit plans and beneficiary designations.
Before her death, Verna Simard had designated one of her adult children, Julie, to be the beneficiary of her Registered Retirement Income Funds (“RRIFs”) and Tax-Free Savings Account (“TFSA”). Verna had also given real property to Julie and added Julie as a co-owner of her other bank accounts during Verna’s lifetime.
Verna had been estranged from her other three adult children. After Verna’s death, these other children sued the estate.
Julie’s siblings claimed, in part, that Julie was not entitled to the whole of Verna’s RRIF and TFSA funds but rather held them in trust for their late mother’s estate (despite Verna’s estrangement, Verna’s Will equally benefited all four children).
The court agreed that Julie held the funds in trust for her mother’s estate, unless Julie could prove that her mother had intended to gift the funds to her alone.
The court concluded that certain funds belonged to Julie while others belonged to the estate. Key to the court’s conclusion was whether Julie could provide enough evidence of her mother’s intention to make a gift. For some funds, Verna’s signed application forms, which designated Julie as beneficiary, were sufficient proof of Verna’s intention to make a gift to Julie. However, for other funds, Verna’s bank statements, which merely showed Julie as the beneficiary, were not enough.
In making Julie prove her mother’s gift, the court in Simard Estate applied a rule from an earlier landmark decision of the Supreme Court of Canada in Pecore v. Pecore, 2007 SCC 17 (“Pecore”).
In Pecore, a father added an adult daughter as a joint owner on his bank account. Canada’s highest court held that, when a parent freely transfers property to an adult child while the parent is still alive, the law presumes that the child holds onto the property in a “resulting trust” for that parent’s estate when that parent later dies. To rebut this presumption, the child must prove that the parent intended a gift at the time of the transfer.
Previously, property that a parent freely transferred to an adult child was presumed to pass to the child, for that child alone to use and enjoy. The burden then fell to the other children to prove that the parent had intended a resulting trust.
In reversing the burden of proof, the Pecore Court was responding to changes in Canadian society. With Canadians living longer, parents may often add an adult child, to the exclusion of the other children, as a co-owner on the parents’ bank accounts or property for administrative ease and convenience, rather than for succession purposes. After that parent dies, the adult child holding the asset is often in a better position than their disinherited siblings to give evidence about the deceased parent’s intention at the time the transfer was made.
It is worth mentioning here that Simard Estate is just one of several cases in British Columbia, decided after Pecore, where British Columbia judges have applied the Pecore rule to beneficiary designations on benefit plans.
However, British Columbia is a bit of an outlier. Courts in Alberta, Saskatchewan, and Nova Scotia have declined to apply Pecore’s presumption of resulting trusts to benefit plan designations. This does not mean that disinherited siblings cannot allege a resulting trust in these jurisdictions. They can; they just have the burden of proving it.
Meanwhile, Ontario has had two conflicting lower-court decisions in the past two years on this question. In the 2020 case of Calmusky v. Calmusky, 2020 ONSC 1506 (“Calmusky“), an Ontario judge applied the presumption of resulting trust to a beneficiary designation on a registered income fund. The following year, in Mak (Estate) v. Mak, 2021 ONSC 4415 (“Mak“), a different Ontario judge explicitly declined to follow the reasoning in Calmusky and chose not to apply the presumption of resulting trust to a beneficiary decision on a RRIF. Unfortunately, neither Calmusky nor Mak were appealed, meaning that, until a higher court breaks the tie, lower courts in Ontario are free to follow either Calmusky or Mak.
Should a presumption of resulting trust apply to beneficiary designations on an RRSP, RRIF, or TFSA? The key issue is whether these designations should be treated more like gratuitous inter vivos transfers (and be subject to the Pecore rule) or more like testamentary dispositions (like an instruction in a Will, to which the presumption of resulting trust is not applied). In this author’s view, there are better arguments in favour of the latter interpretation. Unlike adding a new co-owner to an existing bank account (as was the case in Pecore), which involves a gratuitous inter vivos transfer of property, designating a RRSP beneficiary does not give the RRSP beneficiary access to the RRSP funds until the owner’s death; in fact, the adult making the designation could always revoke the designation up to the point when the adult dies.
However, until an appellate court weighs in to give more clarity, parents in British Columbia will need to consider the decision in Simard Estate, while parents in other provinces would also be wise to take a cautious approach when making one adult child the beneficiary on their registered plans. A parent’s intention at the time of designation matters. That parent’s intention should be documented, and, as Simard Estate shows, bank forms may or may not be sufficient proof of a parent’s intention to benefit a particular child. One possible strategy might be to make a beneficiary designation through a Will, in provinces that allow this. And as always, when in doubt, consult a legal professional.
If you have questions about beneficiary designations or about your estate planning generally, please feel free to contact a member of Private Client Services Group in your region.
