Guarding beneficiary designations — impacts of the Mak (Estate) decision

This article¹ covers the decision of Mak (Estate) v Mak² handed down by the Ontario Superior Court of Justice in June of 2021. This is an update to a more comprehensive cross-country review of beneficiary designations and potential challenges arising from them.

The Mak Estate decision is a change in direction from the 2020 decision of Calmusky v Calmusky,³ also from the Ontario Superior Court of Justice, which is discussed in greater detail in the article referenced above. Briefly, in Calmusky, the Court applied the presumption of resulting trust to a beneficiary designation,⁴ which would require the named beneficiary, if they could not rebut the presumption, to hold the proceeds on resulting trust in favour of the residual beneficiaries of the deceased plan holder’s estate. The Calmusky decision caused great confusion for those in the estate planning field in Ontario, as it called into question whether the proceeds would indeed pass to the named beneficiary for their benefit, as that beneficiary had the burden of proving that they were the true intended recipient of the proceeds.

In Mak Estate, the estate of Tai-Kiu Mak (the Mother) and three of the Mother’s four children (collectively, the Plaintiffs) commenced an application against their brother, Kenny Chi-Keung Mak (Kenny). The Plaintiffs asked the Court to find that Kenny was holding a number of properties, funds, and other assets on resulting trust in favour of the residual beneficiaries of the Mother’s estate. For assets that have been converted, the Plaintiffs requested tracing orders be granted with respect to substituted properties. Undue influence was also alleged with respect to different accounts and assets.

Of particular importance to advisors is the Court’s treatment of the beneficiary designation made by the Mother over her registered retirement income fund (RRIF) in favour of her one son, Kenny. The Plaintiffs asked the Court to set aside this RRIF beneficiary designation on the grounds that the presumption of resulting trust and/or the presumption of undue influence applied. The Court stated that the presumption of undue influence only applies to inter vivos gifts, and that a beneficiary designation is not an inter vivos gift but akin to a testamentary disposition. Therefore, the burden of proof would fall to the Plaintiffs to show, on the balance of probabilities, that Kenny exerted undue influence over his Mother when the RRIF designation was made, which the Plaintiffs failed to establish.

With respect to whether the presumption of resulting trust applied to the RRIF beneficiary designation, the Court reviewed the 2007 Supreme Court of Canada decision of Pecore⁵ and its own earlier decision of Calmusky. The Court in Mak Estate confined the Pecore decision and the application of the presumption of resulting trust to that of inter vivos transfers and not that of a beneficiary designation (such as a designation over a RRIF). The Court further noted the criticisms that stemmed from the earlier decision of Calmusky, and at para 46 stated:

 […] The whole point of a beneficiary designation, however, is to specifically state what is to happen to an asset upon death.

The Court concluded that the presumption of resulting trust does not apply to the beneficiary designation over the RRIF. This does not mean that a resulting trust can never be applied to a beneficiary designation, but rather that the presumption of resulting trust does not apply, and in this instance, the Plaintiffs would bear the burden of proof to show that it was the Mother’s intention to benefit her estate and not the named beneficiary, which they failed to establish.

The Court also reviewed other accounts and transfers, such as joint accounts between the Mother and Kenny, as well as real estate transfers to Kenny, and the Court did apply the presumption of resulting trust with respect to those accounts and assets, which required Kenny to rebut this presumption and prove he was the true beneficial owner and intended recipient of those assets. The Court held that Kenny, as the surviving account holder or transferee, did not rebut the presumption of resulting trust, so those accounts and assets were to be held by Kenny on resulting trust in favour of his Mother’s estate to be distributed in accordance with his Mother’s will.⁶

The divergence in opinions from Ontario’s Superior Court of Justice does not provide clear direction for Ontario estate planners. While Mak Estate is welcome news to estate planners, both Mak Estate and Calmusky are decisions from the same Court, so a higher court decision or legislative amendments are necessary to provide more certainty in this area.

Until greater clarity is obtained, there may be Ontario court cases where one party seeks to rely on Calmusky, and the other party cites the opposing decision of Mak Estate. Further, whether the presumption of resulting trust applies to beneficiary designations has not been consistently applied across Canadian common law provinces. For example, British Columbia, Alberta, and Manitoba have previously held that beneficiary designations are subject to the presumption of resulting trust; Mak Estate does not change this as it is not binding on courts outside of Ontario.

Different industry groups have petitioned for greater clarity in this area after Calmusky was issued. Letters and submissions were sent to the Ontario Ministry of Finance by various groups, including Advocis, the Canadian Life and Health Insurance Association, the Conference for Advanced Life Underwriting, the Ontario Bar Association, and the Society of Trust and Estate Practitioners. Generally, these submissions seek legislative amendments that state that the presumption of resulting trust does not apply to beneficiary designations, which ultimately will provide greater certainty and more predictability for beneficiary designations as an estate planning tool. The advancement of proposals by these industry groups is still necessary post Mak Estate. It will take continued focus to achieve a more cohesive and consistent application of this area of law across the common law provinces. 

Documenting evidence of the plan holder’s intention with respect to beneficiary designations remains vitally important for advisors seeking to help protect their clients’ beneficiary designations. Mak Estate did not apply the presumption of resulting trust to the beneficiary designation over the RRIF, so the named beneficiary/recipient did not have to rebut this presumption, but a resulting trust could still be applied by a court if there is sufficient evidence to support it; the onus or burden of proof would be on the challenger of the beneficiary designation. Therefore, even in provinces where the presumption of resulting trust does not apply to beneficiary designations, named beneficiaries could still be challenged, and it would be prudent to have evidence of the plan holder’s intention to defend against such challenges.  

1 This article is not applicable to Quebec, which is based on a civil law system. 
2 2021 ONSC 4415. Hereinafter referred to as “Mak Estate””. 3 2020 ONSC 1506. Hereinafter referred to as “Calmusky”. 4 Beneficiary designations can be used for registered accounts as well as insurance products, including segregated fund contracts. 5 Pecore v Pecore, 2007 SCC 17. Hereinafter referred to as “Pecore”. 6 For properties that were converted into other property, a tracing order was applied to the substituted properties.