The March 2020 decision in Calmusky v. Calmusky[1] held that the presumption of resulting trust applies to beneficiary designations, meaning that the designated beneficiary of an account would have to adduce independent evidence of a gift to rebut the presumption that the beneficiary was intended to hold the account on resulting trust for the estate. The Calmusky case turned upon that presumption: Justice Lococo held that the absence of other evidence to prove the testator intended a gift meant the RIF in question was held in resulting trust for the estate.
For a more detailed summary of the case, OBA members can see Lucas Strezos’s case comment, available here. As Lucas explains, the case sparked concern among many estates practitioners and financial advisers, who had previously relied on such beneficiary designations as akin to testamentary dispositions. Various stakeholders, including the OBA (whose submission is available here), have already made submissions to the government on the importance of legislative changes to protect the validity of beneficiary designations.
Two subsequent Superior Court decisions have now departed from Calmusky: Munro v. Thomas, 2021 ONSC 3320, released May 4, 2021, and Mak (Estate) v. Mak, 2021 ONSC 3320, released June 18, 2021. Both cases concerned beneficiary designations of accounts, as in Calmusky. In Munro, the asset was a TFSA. In Mak Estate, it was a RRIF. In both cases, the party seeking to overturn the designation specifically relied on Calmusky, but the court declined to follow it.
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