Harrison Pensa law summer student Jacob Williams explains how an Ontario Superior court has affirmed who can be designated as RRIF beneficiaries.
Designating beneficiaries of registered savings plans is an important part of financial and estate planning. For that reason, many professionals who deal with those areas as part of their everyday work were concerned by the Ontario Superior Court decision of Calmusky v. Calmusky, 2020 ONSC 1506. In that decision, the Superior Court extended the principles established by the Supreme Court of Canada in Pecore v. Pecore, [2007] 1 SCR 795, to include registered savings plans.

In Pecore, the Supreme Court of Canada held that when a parent leaves a gift of money to a child for no consideration, the gift is subject to a “resulting trust” and the money should be held by the child for the benefit of the estate. Further, Pecore established that the onus is on the recipient of the money to prove that it was intended as a gift.

In Calmusky, the Superior Court expanded the Pecore rules to cover registered saving plans as well. The case was brought forward by one of the two sons of Henry Calmusky, who was challenging a provision in their father’s will that left his brother as the recipient of the funds in Henry’s registered savings plans. In the decision, the judge wrote that “I see no principled basis for applying the presumption of resulting trust to the gratuitous transfer of bank accounts into joint names but not applying the same presumption to the RIF beneficiary designation”.

This caused some consternation in the professional estate planning community. How beneficiary designations on registered plans are made is set out in legislation. The Calmusky decision suggested that additional documentation might be necessary when designating beneficiaries of registered plans in the future.

Then, just a couple of weeks ago, a Superior Court decision voiced support for the pre-Calmusky status quo. In Mak (Estate) v. Mak, 2021 ONSC 4415, three brothers challenged a provision in their mother’s will that named the fourth brother as the beneficiary of the funds in their mother’s registered savings plan, alleging their mother had been subject to undue influence. In defending the position of the lone brother, the judge wrote that “the designation of a beneficiary of a RRIF is akin to a testamentary disposition and I therefore conclude that the onus is on the plaintiffs to establish undue influence”, while dismissing the claims of undue influence and concluding that Pecore did not apply to registered plans.

In the Mak decision, the judge questioned the decision in Calmusky, noting both that “there is good reason to doubt the conclusion that the doctrine of resulting trust applies to a beneficiary designation”, while also observing that “the decision of this Court in Calmusky has been the subject of some critical comment”.

Since both decisions are at the Superior Court level, Mak does not overrule Calmusky. It will perhaps be left to the Ontario Court of Appeal to give finality to this discussion.

Disclaimer: The above does not represent legal or estate planning advice. It is not intended as such and should not be interpreted as such.


Jacob Williams is a JD Candidate at Western University with an interest in corporate/commercial law, construction law, and real estate. During his law studies, Jacob has been heavily involved in moot trials, including membership on the Bowman Tax Moot team at Western Law for 2020-2021. He also holds Master’s degrees in history and sport management. Connect with Jacob on LinkedIn.

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