1. Introduction

We are all familiar with designated beneficiary forms by which a participant in a pension or similar plan can designate another person to receive a benefit under the plan on the participant’s death.[1] We are also familiar with the provision in wills statutes in most provinces and territories pursuant to which a court can validate a defective testamentary instrument.[2] But the legislation does not contain a similar provision to cure defective designated beneficiary forms. What can a court do in such a situation? This issue arose in The Estate of William Harper,[3] and I believe that the court took a sensible approach to resolve the problem.

2. Facts

William Harper died intestate in September 2019. He and his wife, Murphy, had separated in 2014 and had signed Minutes of Settlement in July 2019. However, they had not yet obtained a divorce when Harper died. The Minutes of Settlement indicated that they were signed in settlement of all claims between the parties, but they made no express reference to the parties’ estates. The deceased and Murphy had one child, Robin, who survived the deceased. Murphy also had a daughter from a previous relationship, Erin Forsyth (‘Forsyth’). She was raised by Murphy and the deceased and lived with them until she went to college. But the deceased never formally adopted her. The relationship between the deceased and Forsyth was strained but it improved once the deceased and Murphy separated. Forsyth sided with the deceased during the separation.

At the time he died, the deceased held three accounts with National Bank Financial (‘NBF’), a cash account, a Registered Retirement Savings Plan (‘RRSP’), and a Life Income Fund (‘LIF’). Mr Stephen Ford (‘Ford’) was the deceased’s financial advisor, first at CIBC Wood Gundy, and then at NFB. In 2017 the deceased executed a beneficiary designation form for the RRSP, which designated his estate as beneficiary. In 2018 he signed another beneficiary designation form (the ‘Disputed Designated Beneficiary Form’). It is a two-page form, the first page of which is white and the second blue. However, the first page could not be found. But the designated beneficiary on the second page was Forsyth and the printed beneficiary, ‘Estate’ was struck out. Ford testified that he would have prepared the form and sent it to the deceased for signature. Once a signed form was returned to him, it was Ford’s normal practice to send the original to the appropriate bank department and to keep the blue copy for himself. However. for some reason the form was not processed. This meant that all NFB’s records indicated that the estate remained the beneficiary of the RRSP. In 2019 Forsyth met with Ford and brought the white copy of the disputed form. Ford then checked his file and found the blue copy, so he knew that he had received the form. He also knew that the deceased wanted Forsyth to benefit from his estate. Forsyth understood that from October 2018 she would be the beneficiary of the RRSP and argued that the Disputed Designated Beneficiary Form applied to both the LIF and the RRSP.

3. Analysis and Judgment

Justice Fowler Byrne noted that the Disputed Designated Beneficiary Form was an instrument contemplated by sections 50 and 51 of the SLRA, and by reference to Ray-Ellis v Goodtrack,[4] she held that the Disputed Designated Beneficiary Form complied with the SLRA, and the fact that it could not be located by NBF did not matter. Apparently, two different forms had to be used to change a beneficiary designation  for the RRSP and the LIF. Ford apparently sent both to the deceased, using a RIF Application for the LIF. The deceased used the RRSP application form to designate Forsyth as the beneficiary. But there was no reference on the form to the LIF. Consequently, her Honour found that the Disputed Designated Beneficiary Form related only to the RRSP. She found that the designation was not vague, since the deceased had only one RRSP account with NBF and its number, as well as the deceased’s contact information and social insurance number were known. Moreover, it was the deceased’s signature and writing on the Form. She also concluded that the Disputed Designated Beneficiary Form reflected the deceased’s intentions. Consequently, her Honour held that the Disputed Designated Beneficiary Form, despite its missing first page was sufficient to designate Forsyth as beneficiary of the RRSP. She found that there was insufficient evidence about who was entitled to the LIF and therefore it passed to the Estate.

Her Honour went on to find that there was no evidence of undue influence on Forsyth’s part. By reference to Vout v Hay,[5] she also applied the will doctrine that the testator is presumed to have capacity to designated beneficiary forms. While that presumption will be rebutted if there are suspicious circumstances, in which case the propounder must then positively prove capacity, she found that there was no evidence of suspicious circumstance.

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[1]    See, e.g., Succession Law Reform Act, RSO 1990, c S.26, ss 50ff (‘SLRA’).

[2]    See, e.g., ibid., s 21.1.

[3]    2024 ONSC 1052.

[4]    2021 ONSC 3102.

[5]    [1995] 2 SCR 876, 1995 CarswellOnt 528, paras 26-27.