Ontario legislation enables a testator to appoint a named person to be the beneficiary of a registered retirement savings plan, a registered income fund and other pension(s). It also outlines very specific criteria to effectively revoke a designation made in a will or on the face of a plan document.
In Laczova v. House, 2001 CanLII 27939 (ON CA), the deceased purchased Retirement Savings Plans (RRSP’s) with the Royal Bank of Canada in 1985 and Scotiabank in 1994, designating named relatives for each at the time of purchase. In 1999, the deceased executed a holograph will which listed all of what she termed her “major assets” and then listed 22 individual and charitable beneficiaries with dollar amounts beside each to indicate the money she directed be given to each. Unfortunately, this self-made will presented a few problems as it did not:
- contain a revocation clause such that it neither revoked an earlier will nor any beneficiary designation made in the deceased’s lifetime.
- give the property to the executor and trustee in trust to carry out the instructions in the will. This was particularly problematic because no specific gift of the property in the estate was made to those listed to receive gifts under the will. Furthermore, the dollar amounts that were directed to be given to the recipients under the will were more than the total value of the property.
In light of the beneficiary designations in the RRSP’s, the estate trustee applied to the Court for directions as to the effect the will had on them. The Court, paying close attention to the wording of the legislation, found that a designation in a will is effective only if it relates expressly to the plan. However, a revocation in a will of a designation made by instrument (that is, a designation made on the face of the RRSP or other plan document) is effective only if it relates expressly to the designation. In this regard, the Court observed that the will does not designate anyone as the beneficiary of the two plans in question. The problem was more clearly demonstrated with these words:
“Assume, for the sake of discussion, that the banks were presented with the deceased’s will and a demand for payment of the benefits under the plans founded upon designations “implicit” in the will. Who, or what, is the object of those implied designations? To whom would the banks be obliged to make payment? To the estate? To the estate trustee? To all of the beneficiaries named in the will collectively? To each of them proportionately? Even on Ms. Carnevale’s “implicit designation” theory, the will provides no guidance with respect to the identity of the beneficiaries of the “implicit” designation which she suggests. ”
Thus, the Court held that the beneficiary designations in the two plans remained effective and were not altered or revoked by the will. A noteworthy point made by the Court in reaching its decision is that the issue did not revolve around the deceased’s intention. Rather, the central question was whether the statutory prerequisites necessary to implement the deceased’s intention were met in her will. The Court concluded that the statutory requirements had not, in fact, been met.
This case is another expensive reminder that holograph wills far too often result in great unnecessary litigation costs and delayed administration to an estate.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
