It is common practice to include a standard revocation clause in a will to explicitly confirm that, by executing the will, the testator has revoked all prior wills and testamentary instruments. While a standard revocation clause may seem comprehensive, there is one type of instrument that may escape its reach – beneficiary designations.

This issue recently came up in Algers v Crumb, 2021 ONSC 6076. The deceased in this case executed her final will after she had already executed beneficiary designations for her RRIF and TFSA accounts. While the will included a clause revoking “all Wills and Testamentary dispositions of every nature and kind”, the will did not explicitly refer to either the RRIF or the TFSA. The issue before the court was whether the standard revocation clause revoked the beneficiary designations.

Justice Verner found that the TFSA and RRIF designations had not been revoked. To achieve this result, the will would have had to specifically refer to the revocation of the beneficiary designations, as required by the Succession Law Reform Act (the “SLRA”). Subsection 52(1) of the SLRA states:

A revocation in a will is effective to revoke a designation made by instrument only if the revocation relates expressly to the designation, either generally or specifically.

Even though beneficiary designations are testamentary dispositions, Justice Lerner held that “it would be a stretch” to find that mentioning testamentary dispositions in the revocation clause “amounted to ‘expressly’ referencing the RRIF designation or the TFSA designation, either generally or specifically.”

The decision in Algers is significant because it marks a turnaround from how section 52 of the SLRA has been interpreted previously. When faced with the same issue in Ashton Estate v South Muskoka Memorial Hospital Foundation – whether a standard revocation clause in a will can revoke a beneficiary designation – Justice McIssac came to the opposite conclusion, finding that the standard revocation clause in that case did revoke a designation. In Algers, Justice Verner held that the outcome in Ashton Estate was “plainly wrong”, particularly given that the Court of Appeal of Ontario demonstrated in 2001 in Laczova Estate v Madonna House that section 52 of the SLRA is to be interpreted strictly. When drafting a will, Justice Verner noted that a “cautious approach” should be taken and that beneficiary designations being revoked using a will ought to be “expressly referenced.”

Thank you for reading, and have a great day.

Suzana Popovic-Montag